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EEOC

RIN: 3046-AA76

Publication ID: 2012

Title: Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act
Abstract: Prior to the Supreme Court's decision in Smith v. City of Jackson, 544 U.S. 228 (2005), 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. On March 31, 2008, the Commission issued a Notice of Proposed Rulemaking (NPRM) to conform Commission ADEA regulations to Smith, also taking the position that the employer bore the burden of proving the defense. Because previous EEOC regulations did not define the meaning of "RFOA," the NPRM also asked whether regulations should provide more information on the meaning of "reasonable factors other than age" and, if so, what the regulations should say. 73 Fed. Reg. 16807 (March 31, 2008). Subsequently, the Supreme Court held in Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008), that employers have the RFOA burdens of production and persuasion. After consideration of the public comments, and in light of the Supreme Court decisions, the Commission issued a second NPRM on February 18, 2010 to address the scope of the RFOA defense. 75 Fed. Reg. 7212. A final rule was issued addressing the issues covered in both NPRMs and conforming to both Smith and Meacham. The RIN associated with the NPRM titled "Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act" (RIN 3046-AA87) was merged with this item (RIN 3046-AA76), which will be the RIN used to identify the final rule.
Agency: Equal Employment Opportunity Commission(EEOC)	Priority: Other Significant
RIN Status: Previously published in the Unified Agenda	Agenda Stage of Rulemaking: Completed Actions
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  03/30/2012  77 FR 19080

Additional Information: Includes Retrospective Review under E.O. 13563.
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 Aaron Konopasky Senior Attorney Advisor, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Phone:202 663-4127 Fax:202 653-6034 Email: aaron.konopasky@eeoc.gov