Last week I wrote about the EEOC’s new Final Rule on the Reasonable Factors other than Age (RFOA) defense in disparate impact claims brought under the Age Discrimination in Employment Act (ADEA).  The EEOC has just published a Q&A explaining the new Rule.

In explaining the purpose of the Final Rule, the Q&A provides:

“The rule does two things:

• It makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity; and
• It explains the meaning of the RFOA defense to employees, employers, and those who enforce and implement the ADEA.”

The Q&A explains what factors determine whether an employment practice is based on RFOA and provides examples demonstrating those factors that may be taken into account in making this determination.  According to the Q&A, “[a]n employment practice is based on an RFOA when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.”  After listing the considerations that are relevant to determining the reasonableness of the employer’s practice, the Q&A points out that the RFOA defense “could be established absent one or more of the considerations, and that there could even be a situation in which the defense is met absent any of the considerations.  Similarly, the defense is not automatically established merely because one or more of the considerations are present.”  Among other things, the Q&A clarifies that, while not required to do so, maintaining documentation that proves that the employer reasonably designed and administered the practice to achieve a legitimate business purpose in light of potential harm to older workers can help the employer establish an RFOA defense.

We will watch for reported RFOA cases and let you know what courts have to say about the Rule.