Altering The ADEA Disparate Impact Defense

Law360, New York (March 23, 2010, 1:33 PM EDT) -- On Feb. 18, 2010, the Equal Employment Opportunity Commission issued a notice of proposed rulemaking with regard to the definition of “Reasonable Factors Other Than Age” (RFOA) under the Age Discrimination in Employment Act (ADEA). 72 Fed. Reg. 7,212. The comment period closes 60 days thereafter.

Code of Federal Regulations title 29, subsections 1625.7(b)(1)(iv)-(vi) of the proposed regulations would significantly change the burden employers must satisfy to defend against disparate impact claims. These proposed subsections read, in pertinent part, as follows:

Factors relevant to determining whether...
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