Q&A on RFOA Defense Provides Practical Guidance on Unintentional Age Bias

In conjunction with its final rule setting forth the “reasonable factors other than age” (RFOA) defense in disparate impact cases brought under the ADEA, the EEOC has issued a Q&A document explaining the new regulation, according to CCH Employment Law Daily. The final rule applies to disparate impact age discrimination, which occurs when a workplace practice or decision results in an unintended adverse impact on older workers.

The EEOC’s long-awaited final rule, which is effective April 30, was published in the Federal Register on March 30 (77 FR 19030). It conforms the EEOC’s existing regulations to recent Supreme Court decisions. In Smith v City of Jackson, the Court found disparate impact claims cognizable under the ADEA but held there is no liability when the impact is due to reasonable factors other than age. In Meacham v. Knolls Atomic Power Lab, the Court held, consistent with the commission’s position, that the employer carries the burden of persuasion on the RFOA defense.

The EEOC’s new Q&A provides practical examples demonstrating considerations that may be taken into account in determining whether an employment practice resulting in an unintentional adverse impact against older workers is based on a RFOA – i.e., one that “is reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.”

The RFOA defense under the ADEA, in contrast to the business necessity defense under Title VII, “does not require employers to formally validate tests or other selection criteria,” according to the Q&A. Employers raising the RFOA defense instead are required only to demonstrate that their choices were reasonable. “The extent to which a practice measures skills related to a job informs the reasonableness of the practice,” the Q&A explains.

The Q&A also clarifies that the RFOA rule does not preclude any other defense permitted under the ADEA, such as those applicable to bona fide occupational qualifications, seniority systems, and employee benefit plans. For employment-related questions, please contact employment attorney, Heather Brock.