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EEOC Issues New Proposed Rule Regarding the RFOA Defense Under the ADEA

March 29, 2010

By Neal D. Mollen and Emily Dillingham

In 2005, the Supreme Court held for the first time that plaintiffs can pursue disparate impact claims under the Age Discrimination in Employment Act (ADEA). Smith v. City of Jackson, 544 U.S. 228 (2005). It also held, however, that the burden imposed by the most frequent defense to such a claim the reasonable factor other than age (RFOA) defense was not onerous, requiring only that the employers practice be a reasonable method of respond[ing] to the [employers] legitimate goal[s].

Now, five years later, the Equal Employment Opportunity Commission (EEOC) has issued for public comment a proposed rule that purports to interpret that decision. If the proposed rule is adopted and survives a court challenge, however, it would largely dispel any sense of comfort employers might have drawn from the relatively forgiving reasonableness standard applied in Smith. Indeed, the standard embraced by the proposed rule would require that employers make effectively the same evidentiary showing they must make under Title VIIs more stringent business necessity defense. Such a result would make ADEA disparate impact litigation much more attractive to the plaintiffs bar and a much greater threat to employers.

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