ADEA Exceptions – Reasonable Factors Other Than Age
ADEA Basics
Covered Employers
The ADEA applies to employers with 20 or more employees.
Prohibited Impact
The ADEA prohibits otherwise neutral policies that adversely affect groups of individuals who are aged 40 and older.
No Intent Required
A practice may apply to all employees regardless of age but still result in a
negative impact on individuals who are 40 and older.
RFOA Defense
Reasonable Factors
An RFOA defense does not have to be based on a specific factor or combination of factors, and the existence of any given factor does not automatically prove the employer’s defense.
The Age Discrimination in Employment Act (ADEA) is a federal law that protects individuals who are 40 years of age or older from employment discrimination based on age. However, employers facing certain types of ADEA claims may have a defense based on reasonable factors other than age.
Disparate Impact Discrimination
Under the ADEA, discriminatory actions generally include any actions that adversely affect an individual’s employment solely because of age. The ADEA also prohibits any employment practice that adversely affects protected individuals as a group, even if the employer did not intend for the adverse effect. These practices are known as “disparate impact” discrimination. For example, a practice may apply to all employees regardless of age but still result in a negative impact on individuals who are 40 and older.
RFOA Defense
When facing a disparate impact claim, an employer may raise an affirmative defense that its employment decision was based on reasonable factors other than age (RFOA). The Equal Employment Opportunity Commission (EEOC), which enforces the ADEA, uses a variety of criteria to examine this, such as:
Whether the factor is related to the employer’s stated business purpose;
Whether the employer applied the factor fairly and accurately;
Whether the employer assessed the impact on older workers; and
The degree of harm to individuals aged 40 and older, in terms of both the extent of injury and numbers affected and the extent to which the employer took steps to reduce the harm.
The EEOC has stated that, given the context-specific nature of the RFOA inquiry, it is not possible to specify every type of relevant evidence that would demonstrate the existence of one or more of these factors.
This Compliance Snapshot is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. ©2023 Zywave, Inc. All rights reserved.