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Act Now Advisory: EEOC’s Amended ADEA Regulation Raises the Bar for Employers’ RFOA Defense

Epstein Becker Green

A final rule that amends the “reasonable factors other than age” defense under the Age Discrimination in Employment Act has been issued by the U.S. Equal Employment Opportunity Commission. Slated for implementation on April 29, the final RFOA rule forces employers seeking to establish the reasonableness of a policy or practice resulting in an age-based adverse impact to comply with strict procedural and factual requirements. Under the final rule, “Any employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory” unless the employer justifies the practice as a RFOA. The factor must be “objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.”