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| EEOC | RIN: 3046-AA76 | Publication ID: Spring 2009 |
| Title: Disparate Impact Burden of Proof Under the Age Discrimination in Employment Act | |
| Abstract: Prior to the Supreme Court’s decision in Smith v. City of Jackson, Commission regulations interpreted the ADEA to require employers to prove that actions that had an age-based disparate impact were justified as a business necessity. Although the Court, in Smith, agreed with the EEOC that disparate impact claims were cognizable under the ADEA, it held that the defense was not business necessity, but reasonable factors other than age (RFOA). The Smith Court did not specify who bore the burden of proof on the RFOA defense. Accordingly, on March 31, 2008, the Commission issued an NPRM to conform Commission ADEA regulations to Smith, also taking the position that the employer bore the burden of proving the defense. Subsequently, the Supreme Court held in Meacham v. Atomic Knolls Laboratory, that employers bore the burden of proof. Thus, the EEOC is revising this regulation to conform to both Smith and Meacham. In the March 2008 NPRM, the Commission also asked whether its ADEA regulation should provide more information on the meaning of RFOA and, if so, what the regulations should say. After consideration of the public comments, and in light of the Supreme Court decisions in Smith and Meacham, the Commission believes it is appropriate to issue a separate NPRM to address the scope of the RFOA defense. This new NPRM will be titled "Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act." | |
| Agency: Equal Employment Opportunity Commission(EEOC) | Priority: Substantive, Nonsignificant |
| RIN Status: Previously published in the Unified Agenda | Agenda Stage of Rulemaking: Final Rule Stage |
| Major: No | Unfunded Mandates: No |
| CFR Citation: 29 CFR 1625.7(d) | |
| Legal Authority: 29 USC 628 | |
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Legal Deadline:
None |
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Timetable:
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| Regulatory Flexibility Analysis Required: No | Government Levels Affected: Federal, Local, State, Tribal |
| Small Entities Affected: Businesses, Governmental Jurisdictions, Organizations | Federalism: No |
| Included in the Regulatory Plan: Yes | |
| RIN Data Printed in the FR: No | |
| Related RINs: Related to 3046-AA87 | |
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Agency Contact: Dianna B. Johnston Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE, Washington, DC 20507 Phone:202 663-4657 Fax:202 663-4639 Email: dianna.johnston@eeoc.gov |
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