EEOC Issues Final Rule on “Reasonable Factors Other than Age” Under the ADEA

by Sayema Hameed

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a final rule clarifying an employer’s defense against claims under the Age Discrimination in Employment Act of 1967 (ADEA).  The ADEA prohibits employment discrimination against people who are 40 years of age or older.  In addition to prohibiting intentional discrimination against older workers, the ADEA also prohibits facially neutral policies and practices that have the effect of harming older workers more than younger workers (known as “disparate impact”).  The final rule explains the “Reasonable Factors Other than Age” defense to disparate impact claims under the ADEA.

Specifically, the new rule explains that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a “reasonable factor other than age” (RFOA). The rule explains the meaning of the RFOA defense to employees, employers, and courts, and makes EEOC’s regulations consistent with Supreme Court case law.  The rule applies to private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations.  According to the EEOC, the final rule strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions and preserving an employer’s ability to make reasonable business decisions.  An employer would be required to prove the RFOA defense only after an employee has identified a specific employment policy or practice, and established that the policy or practice harmed older workers substantially more than younger workers.

The EEOC provides the following example of the RFOA defense:

“If a police department decided to require applicants for patrol positions to pass a physical fitness test to be sure that the officers were physically able to pursue and apprehend suspects, it should know that such a test might exclude older workers more than younger ones.  Nevertheless, the department’s actions would likely be based on an RFOA if it reasonably believed that the test measured the speed and strength appropriate to the job, and if it did not know, or should not have known, of steps that it could have taken to reduce harm to older workers without unduly burdening the department.”

The rule emphasizes the need for consideration of the unique facts and circumstances in each case and includes the following list of considerations relevant to assessing reasonableness:

  • The extent to which the factor is related to the employer’s stated business purpose;
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
  • The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
  • The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
  • The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

To learn more about the final rule, visit the EEOC website:

About Cabada & Hameed LLP

Cabada & Hameed LLP is a law firm serving the greater Southern California region. Formed by “big firm” veterans in 2009, the firm offers exceptional legal representation with experienced attorneys handling Labor & Employment and Business Litigation matters. Partners and co-founders Francisco Cabada and Sayema Hameed bring nearly two decades of legal experience to every matter and ensure that clients receive individualized counsel, around-the-clock availability, the utmost discretion and maintenance of the highest professional and ethical standards. For more information, please visit the website

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