Employment Law Commentary, August 2012

On March 30, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued its Final Rule on Disparate Impact and Reasonable Factors Other than Age (RFOA). This rule became effective on April 30, 2012. The Final Rule explained the affirmative defense that employers have to disparate impact claims under the Age Discrimination in Employment Act (ADEA), and amended the Commission's prior RFOA regulation, 29 C.F.R. § 1625.7.

The EEOC's Final Rule sought to clarify the Supreme Court's seminal rulings in Smith v. Jackson, 544 U.S. 228, (2005) and Meacham v. Knolls Atomic Power Lab, 554 U.S. 84 (2008). These cases broadly interpreted the ADEA, affirming the ability of employees to bring disparate-impact claims under the ADEA and placing the burden on employers to prove that a policy or practice that adversely impacts older workers is based on an RFOA. The Final Rule updates the EEOC's regulations on these issues. While the full effect of the rule has yet to be seen,