The U.S. Equal Employment Opportunity Commission (EEOC) issued the “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” (RFOA, https://www.federalregister.gov/articles/2012/03/30/2012-5896/disparate-impact-and-reasonable-factors-other-than-age-under-the-age-discrimination-in-employment)  under the Age Discrimination in Employment Act of 1967 (ADEA). The final rule was coordinated with other federal agencies and reviewed by the Office of Management and Budget (OMB).  The rule was posted for public inspection on March 29, 2012, and was published in the Federal Register on Friday, March 30.

The final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age. The rule explains the meaning of the RFOA defense to employees, employers, and courts, and makes EEOC’s regulations consistent with Supreme Court case law.  The rule applies to private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations. The final rule strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions and preserving an employer’s ability to make reasonable business decisions.

The ADEA prohibits employment discrimination against people who are 40 years of age or older.  The purpose of the ADEA is to promote the employment of older persons based on their ability, rather than age. Congress enacted the ADEA in 1967 because of its concern that older workers were disadvantaged in retaining and regaining employment.

The Commission held public meetings focused on age discrimination and older worker unemployment in 2009 and 2010 because of concerns that older workers frequently were unfairly laid off during downsizing, had particular problems regaining employment after losing their jobs, and were barred from employment by some common employment practices that were unrelated to job performance. The number of age discrimination charges filed with the Commission increased by 50% since 2000. On November 16, 2011, the Commission voted 3-2 to approve the final rule.