The defense is not available when an employment practice is not neutral, and specifically uses age as a limiting criterion (for instance, a company practice that states that the company will not hire anyone over 45 years old). The defense is also not available in disparate treatment cases, where an employee claims they were singled out for different treatment (such as discipline) because of their age. For a discussion of the difference between disparate treatment and disparate impact cases, see Discrimination Defined.

According to federal ADEA regulations, a “reasonable factor other than age” is “a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.” The regulation emphasizes the need for a case-by case analysis of “all the particular facts and circumstances surrounding each individual situation.” Further, “to establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.”1

The EEOC provided the following example:

• A police department requires applicants for patrol positions to pass a physical fitness test to assure that officers can physically pursue and apprehend suspects. The department should know that such a test may exclude older workers over younger workers. Nevertheless, the department’s actions are likely based on an RFOA if the department reasonably believed that the test measured the speed and strength necessary for the job and if it did not know (or should not have known) of steps to take to reduce harm to older workers without unduly burdening the department.

There are several considerations which a court will take into account to assess the reasonableness of the employer’s actions and the availability of the defense.2

• Employers that have practices which potentially impact older workers more than younger workers, such as screening tests or reductions in force, should consult legal counsel. Employers should never assume that the RFOA defense will be available to them. Employers should clearly identify business goals and needs when implementing policies or practices that may have a disparate impact. Managers should also be trained to recognize practices that may have a disparate impact and also to make objective decisions.

1. 29 CFR sec. 1625.7(e)

2. 29 CFR sec. 1625.7(e)