Final rule discusses the regulation's RFOA defense
and its impact on disparate treatment and disparate impact
claims.
On March 30, the EEOC issued a final rule amending its Age
Discrimination in Employment Act (ADEA) regulation, 29 C.F.R.
§ 1625.7, regarding the "reasonable factor other than
age" (RFOA) defense and its application to disparate treatment
and disparate impact claims under the ADEA. 62 Fed. Reg. 19,080
(Mar. 30, 2012). The amended regulation confirms that (1) the
plaintiff bears the burden of "isolating and identifying the
specific employment practice" that allegedly causes any
observed statistical disparities, and (2) the employer bears the
burdens of production and persuasion to demonstrate the RFOA
defense. 29 C.F.R. § 1625.7(c), (d). The regulation also
attempts to clarify what constitutes a "reasonable factor
other than age," and provides a nonexhaustive list of
considerations that are relevant in determining whether a practice
is based on a
