How does the proposed rule approach the “reasonable factors other than age” defense?
The proposed rule emphasizes the need for an individualized, case-by-case approach to determining whether an employment practice is based on reasonable factors other than age. It also emphasizes that the RFOA defense applies only when an employment practice is not based on age. In addition, it provides lists of factors relevant to determining whether an employment practice is “reasonable” and whether it is based on a factor “other than age.” What is the basis for the proposed rule’s definition of “reasonable factors other than age? The proposed rule is based on our analysis of Smith and Meacham v. Knolls Atomic Power Lab., 128 S. Ct. 2395 (2008) (holding that the employer bears the burden of proving the RFOA defense). In addition, because neither Smith nor Meacham elaborated on the meaning of “reasonable,” the proposed rule refers to tort law’s interpretation of that term. Why did the EEOC rely on tort law? Courts have previously turned to tort law for guidance when resolving employmen
