Blog Archives

EEOC Issues Proposed Rulemaking For “Reasonable Factors Other Than Age” Test Under ADEA

The Equal Employment Opportunity Commission (“EEOC”) recently issued a notice of proposed rulemaking to define the meaning of the “reasonable factors other than age” defense under the Age Discrimination in Employment Act (“ADEA”).

This notice of proposed rulemaking was in response to two decisions issued by the United States Supreme Court in recent years.  First, in Smith v. City of Jackson (March 30, 2005), the Supreme Court ruled that an employment practice that has a disparate impact on older workers is discriminatory unless the practice is justified by a “reasonable factor other than age.”  Second, in Meacham v. Knolls Atomic Power Laboratories (June 19, 2008), the Supreme Court ruled that the employer bears the burden of production and persuasion in making the “reasonable factors other than age” defense in an ADEA disparate impact claim.

The proposed rule explains that the “reasonable factors other than age” defense should be analyzed on an individualized, case-by-case basis.  The standard to be applied in this analysis is that of a “reasonable employer” under the circumstances.  In addition, the proposed rule also explains that the “reasonable factors other than age” defense appplies only if the challenged employment practice is not based on age.  Finally, the proposed rule provides a non-exhaustive list of factors relevant to whether an employment practice is “reasonable” and whether it is based on a factor “other than age.”

A copy of the Notice of Proposed Rulemaking can be viewed here.