EEOC Issues Proposed Rules Regarding ADEA Defense

On Feb. 18, 2010, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) to more clearly define the meaning of the "reasonable factors other than age" (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The RFOA defense is an affirmative defense asserted by the employer in order to demonstrate that its challenged policy or action was based on "reasonable factors other than age." This particular NPRM follows two United States Supreme Court cases addressing the RFOA defense: Smith v. City of Jackson and Meacham v. Knolls Atomic Power Laboratories.

In Smith, the court authorized recovery for disparate impact claims of discrimination holding that the RFOA test, rather than the business-necessity test, is the appropriate standard for determining the lawfulness of a practice that disproportionately affects older individuals. Subsequently, in Meacham, the Supreme Court held that an employer bears both the burdens