EEOC Issues New Age Discrimination Regulation

By: Melanie M. Dunajeski

The Age Discrimination in Employment Act (“ADEA”) prohibits employment discrimination against people who are 40 years of age or older. On March 29th, the EEOC issued its “Final Regulation on Disparate Impact and Reasonable Factors Other than Age.”  The final rule makes the EEOC’s ADEA regulations consistent with recent Supreme Court case law, and clarifies the “reasonableness test” embraced by the “Reasonable Factor Other than Age” (“RFOA”) defense.  Consistent with the Supreme Court’s 2008 holding in Meacham v. Knolls Atomic Power Laboratory, the new rule provides that RFOA is an affirmative defense in disparate-impact cases for which the employer bears the burdens of production and persuasion. This standard of proof is higher than a simple “rational basis”, since proof that an action was rational focuses on whether an articulated reason is a pretext for intentional discrimination.

The rule also encompasses the Supreme Court’s 2005 holding in Smith v. City of Jackson. “In Smith, the Supreme Court bluntly held that the RFOA provision is not a statutory safe harbor from liability for disparate treatment when the employer merely had a rational justification for its actions,” the EEOC stated. “The RFOA defense necessarily requires more than merely a showing that the employer’s action was not irrational or not arbitrary.” Noting in its preamble that factors such as “flexibility, willingness to learn and technological skills” are particularly susceptible to age-based stereotyping, the EEOC in its final rule also provides that giving supervisors unchecked discretion to engage in subjective decision-making might result in disparate impact against older workers, making it more important than ever that employers should take reasonable steps to limit, audit or oversee the discretionary actions of supervisors.  The full text of the rule can accessed through

If you have any questions about how this final rule may affect your employee handbook, policies or procedures, please contact the Labor & Employment attorneys at DSV.