The Age Discrimination in Employment Act of 1967 prohibits discrimination on the basis of age and covers employees who are 40 years of age and older, which provides a statutory exception for "reasonable factors other than age." Since the Supreme Court held in Smith v. City of Jackson that employees could bring a disparate impact case under the ADEA, employers have sought guidance from the EEOC on how it would interpret the cryptic phrase "reasonable factors other than age" in the disparate impact context. In response to Smith, on March 30, 2012, the EEOC published its revised rule with regard to the RFOA defense. However, the hope that the final rule will assist employers engaged in reductions-in-force or setting workforce job qualifications seems unlikely to be realized because the new rule contradicts Smith and the Supreme Court's subsequent opinion in Meacham v. Knolls Atomic Power Laboratory. Under the final rule, the EEOC makes it more challenging for employers to implement facially neutral employment policies that should otherwise be lawful because they are based legitimately on nonage factors.

Application of the reasonable factors other than age defense in ADEA claims

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