EEOC Issues Rule Amending Its ADEA Regulation

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