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Changes to RFOA Defense in ADEA Claims On Horizon

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The Age Discrimination in Employment Act (ADEA) permits individuals to bring claims of disparate impact. An employer may be found liable for discrimination based on its use of policies and practices that appear to be neutral but have a disproportionate adverse effect on a protected class. 

One of the defenses to a disparate impact claim filed under the ADEA is the "reasonable factor other than age" defense (RFOA). If a selection process has a disparate impact by age, the employer much show that the process chosen and the business decisions made were reasonable.

In February 2010 the EEOC proposed a redefinition of the RFOA defense to include a set of criteria for establishing the reasonable factor other than age. Two weeks ago, the EEOC voted 3-2 in favor of a draft final rule defining the parameters of the RFOA defense. The general consensus is that the new rule may make it more difficult for an employer to assert an affirmative defense in response to a disparate impact claim filed under the ADEA.

In this installment, we talk about the reasonable factors other than age defense, the EEOC's draft rule defining the parameters of that defense, and what this new rule could mean for employers.