On February 18, 2010, the Equal Employment Opportunity Commission published a Notice of Proposed Rulemaking in the Federal Register. The proposed rule will address the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA) in response to the Supreme Court decisions in Smith v. City of Jackson, 544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008).
In Smith, the Court held that a disparate impact claim can be made under the ADEA but that such claims are limited by the RFOA provision of the ADEA. In Meacham, the Court held that the RFOA provision of the ADEA creates an affirmative defense for employers. Seeking to clarify the scope and application of the RFOA provision, the EEOC has proposed amendments to 29 C.F.R. § 1625.7 which would add the following:
- A totality of the circumstances test specifying that the analysis of an RFOA defense “must be made on the basis of all the particular facts and circumstances surrounding each individual situation.”
- A definition for “reasonable” and a sample list of factors to examine when determining whether an employment practice is reasonable. Generally, “a reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer” that is “mindful of its responsibilities under the ADEA.”
- A sample list of factors to consider when determining if an employment practice is based on “factors other than age.”
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