ADEA Changes: EEOC Muddles the RFOA Defense to Disparate-Impact Age Bias Claims
By DEBORAH S. WEISER, SAMUEL ESTREICHER, ZACHARY D. FASMAN & PAUL GROSSMAN
On March 30, 2012, the Equal Employment Opportunity Commission (EEOC) issued the final rule to amend its Age Discrimination in Employment Act (ADEA) regulations concerning the reasonable- factors-other-than-age (RFOA) defense to disparate-impact claims. The revised EEOC regulations take effect on April 30, 2012.
Employers should consider how the EEOC and plaintiffs will use the revised regulations to attack employer policies that may be considered to have an adverse impact on older workers. In light of the five relevant considerations identified by the EEOC, if your company is sued for disparate impact age discrimination under the ADEA, you can anticipate that your executives will be questioned by the EEOC and/or private counsel.