EEOC PROPOSES NEW ADEA REGULATION FOR RFOA STATUTORY ADEA DEFENSE TO ADVERSE IMPACT

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

In Smith v. City of Jackson (2005), the Supreme Court ruled that adverse impact is a valid ADEA claim and that the Factors Other Than Age (RFOA) defense, which is lighter than the job-relatedness defense in Title VII, is the proper defense in age discrimination cases. The Supreme Court further ruled in Meacham v. Knolls Atomic Power Lab (2008) that the RFOA is an affirmative defense, meaning it requires proof. A comprehensive account of the Smith and Meacham rulings is provided by Gutman & Dunleavy (see http://www.siop.org/tip/Oct08/PDFs/462_073to079.pdf). The proposed regulation may be viewed at http://edocket.access.gpo.gov/2010/2010-3126.htm. The EEOC proposes to define an RFOA as “one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances” and that it is “ one that would be used in a like manner by a prudent employer mindful of its responsibilities under the ADEA.”

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