California Labor &
Employment Law Blog
Mar 10, 2010

EEOC’s Proposed Rule on “Reasonable Factors Other Than Age” Under ADEA

Topics: Discrimination, Harassment & Retaliation, New Laws & Legislation

The EEOC recently issued a proposed rule explaining the "reasonable factors other than age" (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The RFOA defense shields an employer from liability in a disparate impact age discrimination case where the employer establishes that the challenged practice, even though shown to have a disparate impact on older workers, was facially neutral and based on reasonable factors other than age.

Under the EEOC's proposed rule, for the RFOA defense to apply, the challenged practice must be found to be objectively reasonable in the eyes of a reasonable employer in similar circumstances. The proposed rule lists several factors to be considered in evaluating whether the employer relied on reasonable factors other than age, including (1) the commonality of the business practice used by the employer; (2) the manner in which the practice was administered; (3) the employer's awareness of the possible adverse impact of the decision on older workers; (4) steps the employer took to assess and mitigate the impact of the decision on older workers; (5) the existence of less discriminatory alternatives; (6) the extent to which management engaged in age-related stereotyping; and (7) the extent to which the employer trained management on how to avoid discrimination.

The EEOC is accepting public comment on the proposed rule until April 19, 2010. To access the proposed rule, click here.

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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