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EEOC

RIN: 3046-AA76

Publication ID: Spring 2010

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 whether the employer or employee 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. Knolls Atomic Laboratory, that employers bore the burden of proof. Thus, the EEOC's proposed regulation conforms 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 issued a separate NPRM to address the scope of the RFOA defense. This NPRM is titled "Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act." A Final Rule will cover the issues addressed in both NPRMs.
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

Legal Deadline: None

Timetable:

Action	Date	FR Cite
NPRM	03/31/2008	73 FR 16807
NPRM Comment Period End	05/30/2008
Final Action	03/00/2011

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: No
RIN Data Printed in the FR: No
Related RINs: Related to 3046-AA87
Agency Contact: Dianna B. Johnston Senior Attorney Advisor, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Phone:202 663-4657 Fax:202 663-4679 Email: dianna.johnston@eeoc.gov