New EEOC Regulations Seek to Ramp Up Burden of Proof on Employer Defenses Under the Age Discrimination in Employment Act

The Equal Employment Opportunity Commission (EEOC) published a new interpretive rule under the Age Discrimination in Employment Act (ADEA) on March 30. The regulation defines the "reasonable factor other than age" (RFOA) defense that employers must prove when defending age discrimination claims based on adverse impact under the ADEA. The new rule takes effect on April 30, 2012, and employers should be aware of its impact when considering any employment policy or reduction in force that may adversely affect older workers.

The rule includes a non-exhaustive list of facts and circumstances that the EEOC believes should be considered in determining whether an employment practice with an adverse impact on older workers is justified by a "reasonable factor other than age." These considerations are based on a fact-intensive inquiry that looks to the reasonableness of the employer's actions and the particular circumstances of a given situation. The EEOC stakes out exactly what it believes employers must prove...