Originally published in InsideCounsel.com on May 21, 2012

On March 30, the Equal Employment Opportunity Commission (EEOC) published its final rule, meant to clarify the “reasonable factors other than age” (RFOA) defense available under the Age Discrimination in Employment Act (ADEA) (foreshadowed by InsideCounsel). The clarification, however, invites more questions, as it imposes a highly factintensive analysis that does little to assist employers in complying with the ADEA.

The ADEA protects employees who are 40 years and older by prohibiting discrimination based on age. In Smith v. City of Jackson, the Supreme Court recognized the validity of a disparate impact claim under the ADEA. A disparate impact claim does not require a showing of intentional discrimination, but rather is based on an employer’s adoption of a facially neutral policy that adversely affects a protected category of workers—in this case, older workers. In Smith, the high court also recognized a defense to such a claim when the adverse impact is based on “reasonable factors other than age.” The employer has the burden to prove the defense.

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