The U.S. Equal Employment Opportunity Commission (EEOC) has published in the Federal Register a Notice of Proposed Rulemaking (NPRM) addressing the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA). The agency is soliciting comments from the public and other interested parties by Monday, April 19, 2010.

The proposed rule follows a March 31, 2008, NPRM on disparate impact under the ADEA. In addition to requesting comments on its substance, the prior NPRM asked whether the Commission should provide more information on the meaning of the RFOA defense. Most commenters supported addressing the issue and, accordingly, the EEOC is publishing a new NPRM on RFOA. The NPRM has been coordinated with other federal agencies and reviewed by the Office of Management and Budget.

The proposed rule explains that the RFOA defense applies only if the challenged practice is not based on age and that a neutral practice that disproportionately affects older workers can be justified only by showing that the practice is objectively reasonable when viewed from the perspective of a reasonable employer under like circumstances. The proposed rule sets forth non-exhaustive lists of factors relevant to determining whether a factor is “reasonable” and “other than age.”

The EEOC will consider the public comments received and will make appropriate changes based on those comments. A proposed final rule covering this and the March 2008 proposed rules will then be coordinated with other federal agencies and reviewed by the Office of Management and Budget before becoming effective.