Proposed EEOC Rule on ADEA Defenses

Update: The EEOC now has a press release up with a link to the published NPRM about RFOA under the ADEA as well as background about the proposed rule. Hat Tip: Rebecca Hamburg

Based on the Supreme Court ADEA decisions in Smith v. Jackson, 544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Lab., 128 S.Ct. 2395 (2008), the EEOC will release today a proposed rule defining the “reasonable factor other than age” (RFOA) defense available to employers under the Age Discrimination in Employment Act (ADEA).

The EEOC proposes to amend its existing regulations to meet the new standards in Smith and Meacham. Smith provided for a limited ADEA disparate impact claim. Meacham found that employers have the burden of proving the RFOA defense (that a challenged employment practice causing adverse impact was based on a “reasonable factor other than age” (RFOA)).

You can find the proposed regulation here.

PS