[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Rules and Regulations]
[Pages 19080-19095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5896]


=======================================================================
-----------------------------------------------------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1625

RIN 3046-AA76


Disparate Impact and Reasonable Factors Other Than Age Under the 
Age Discrimination in Employment Act

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') is issuing this final rule to amend its Age 
Discrimination in Employment Act (``ADEA'' or ``Act'') regulations 
concerning disparate-impact claims and the reasonable factors other 
than age defense (``RFOA''). The Commission published proposed rules in 
the Federal Register on March 31, 2008, and February 18, 2010, for 
sixty-day notice-and-comment periods. After consideration of the public 
comments, the Commission has revised portions of the proposed rules and 
is now issuing a final rule covering both proposals.

DATES: Effective April 30, 2012.

FOR FURTHER INFORMATION CONTACT: Dianna B. Johnston, Senior Attorney-
Advisor, Aaron Konopasky, Attorney-Advisor, or Davis L. Kim, Attorney-
Advisor, at (202) 663-4640 (voice) or (202) 663-7026 (TTY). (These are 
not toll free numbers). This final rule also is available in the 
following formats: Large print, Braille, audio tape and electronic file 
on computer disk. Requests for this notice in an alternative format 
should be made to the Publications Information Center at 1-800-669-3362 
(voice) or 1-800-800-3302 (TTY).

SUPPLEMENTARY INFORMATION:

Background

    On March 31, 2008, EEOC published in the Federal Register a Notice 
of Proposed Rulemaking (``NPRM'') to address issues related to the 
United States Supreme Court's decision in Smith v. City of Jackson.\1\ 
73 FR 16807, Mar. 31, 2008. The Court ruled that disparate-impact 
claims are cognizable under the Age Discrimination in Employment Act 
(``ADEA'') \2\ but that liability is precluded when the impact is 
attributable to a reasonable factor other than age. The NPRM proposed 
to revise 29 CFR 1625.7(d) to state that an employment practice that 
has an adverse impact on individuals within the protected age group on 
the basis of older age is discriminatory unless the practice is 
justified by a ``reasonable factor other than age'' and that the 
individual challenging the allegedly unlawful employment practice bears 
the burden of isolating and identifying the specific employment 
practice responsible for the adverse impact. The Commission also 
proposed to revise 29 CFR 1625.7(e) to state that, when the RFOA 
exception is raised, the employer has the burden of showing that a 
reasonable factor other than age exists factually.
---------------------------------------------------------------------------

    \1\ 544 U.S. 228 (2005).
    \2\ 29 U.S.C. 621-34.
---------------------------------------------------------------------------

    The NPRM sought public comments on the proposed rule and also 
invited comments on whether the Commission should provide more 
information on the meaning of ``reasonable factors other than age.'' 
Seven of the ten commenters clearly supported efforts to provide more 
information. One of the seven suggested that reasonable factors should 
be related to job requirements or job performance. One commenter who 
preferred that the EEOC not address the matter argued that, if the RFOA 
definition is subject to regulation, then EEOC should consult case law 
for a definition and should draft factors relevant to the RFOA 
determination. One commenter opposed efforts to provide more 
information on the meaning of RFOA.
    As noted below, all commenters who addressed the proposed revision 
to 29 CFR 1625(d) supported it. Four commenters endorsed the proposal 
as written and two generally supported the section but suggested 
changes to the first sentence. For the reasons explained below, the 
final rule, which has been redesignated 1625.7(c), retains the 
proposal's substantive language.
    Five commenters supported the proposed revision to 29 CFR 1625(e) 
and four opposed it. The commenters who opposed it argued that 
plaintiffs, not employers, should bear the RFOA burden of persuasion. 
As noted below, the final rule, which has been redesignated 1625.7(d), 
continues to place the burden of persuasion on the employer because the 
Supreme Court agreed that the employer has the RFOA burden of 
persuasion.\3\
---------------------------------------------------------------------------

    \3\ Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 91-92 
(2008).
---------------------------------------------------------------------------

    Subsequently, on February 18, 2010, EEOC published in the Federal 
Register a second NPRM to address the meaning

[[Page 19081]]

of ``reasonable factors other than age.'' 75 FR 7212, Feb. 18, 2010. 
The Commission noted that, given public comments and the Supreme Court 
decisions in Smith and Meacham, it was issuing the NPRM ``before 
finalizing its regulations concerning disparate impact under the 
ADEA.'' The NPRM proposed to revise 29 CFR 1625.7(b) to state that the 
RFOA determination depends on the facts and circumstances of each 
specific situation. It defined a reasonable factor as one that is 
objectively reasonable when viewed from the position of a reasonable 
employer under like circumstances. It provided that the RFOA defense 
applies only if the challenged practice is not based on age. In 
addition, the NPRM provided non-exhaustive lists of factors relevant to 
whether an employment practice is reasonable and whether a factor is 
``other than age.''
    In response to the February 2010 NPRM, EEOC received 27 comments 
from groups and individuals and more than 2,300 facsimiles that were 
similar in form and content. Two commenters on the February 2010 NPRM 
suggested that the Commission issue a new NPRM if it made any changes 
to the material contained in the March 2008 NPRM. One of the two also 
suggested the publication of a new NPRM if the EEOC offered new 
justifications for the material contained in the February 2010 NPRM. 
The other commenter suggested that a new NPRM clarify whether the 2008 
and 2010 documents should be read in conjunction.
    The Commission does not believe that publication of a new NPRM is 
necessary. The Commission has considered all comments received in 
response to both notices of proposed rulemaking and has made 
appropriate changes to the proposed rules in response to those 
comments. This document sets out the revised paragraphs of Sec. Sec.  
1625.7(b) through (e). Because Sec. Sec.  1625.7(a) and (f) remain 
unchanged, they are not reprinted herein.
    Some commenters on the February 2010 NPRM, including those who 
submitted form facsimiles, expressed concern that the EEOC's approach 
to RFOA would place significant burdens on employers. They argued that 
the rule would lead to unwarranted scrutiny of business decisions, 
permit second-guessing of routine decisions, and make it harder for 
employers to defend against frivolous litigation. Other commenters 
thought that the rule presented a fair, workable approach to RFOA.
    The ADEA and disparate-impact analysis by definition require some 
scrutiny of employer practices that disproportionately harm older 
workers. As the Supreme Court held, employers must prove that such 
practices are based on reasonable factors other than age once 
plaintiffs have identified a specific employment practice that has a 
significant disparate impact.\4\ In holding that the RFOA is an 
affirmative defense, the Supreme Court recognized that scrutiny of 
employer decisions that cause an adverse impact is warranted, as 
employers must persuade ``factfinders that their choices are 
reasonable'' and that ``this will sometimes affect the way employers do 
business with their employees.'' \5\
---------------------------------------------------------------------------

    \4\ Id. at 96.
    \5\ Id. at 101.
---------------------------------------------------------------------------

    The EEOC's proposed rule was designed to conform existing 
regulations to recent Supreme Court decisions and to provide guidance 
about the application of the RFOA affirmative defense. It was not 
intended to impose unwarranted burdens on employers. Nonetheless, the 
Commission recognizes that some commenters interpreted the proposed 
rule as imposing significant burdens by requiring employers to meet all 
of the factors relevant to the RFOA determination. As explained below, 
the Commission has revised the rule to clarify that the factors are not 
required elements or duties, but considerations that are manifestly 
relevant to determining whether an employer demonstrates the RFOA 
defense.
    Some commenters argued that the proposed rule improperly imported 
Title VII standards into ADEA disparate-impact analysis and conflicted 
with the Supreme Court decisions in Smith, Meacham, and Hazen Paper Co. 
v. Biggins.\6\ Other commenters believed that the proposed rule was 
consistent with the statute and relevant case law. The Commission, 
which disagrees with some commenters' interpretations of the statute 
and Supreme Court decisions, has addressed their comments in the 
context of specific sections of the rule. For the reasons explained 
below, the Commission believes that the rule is consistent with the 
ADEA and case law interpreting the statute. Where appropriate, the 
Commission has revised the rule to make this clearer.
---------------------------------------------------------------------------

    \6\ 507 U.S. 604 (1993).
---------------------------------------------------------------------------

Section-by-Section Analysis

Section 1625.7(b)

    Former section 1625.7(c) has been redesignated 1625.7(b). The text 
of the paragraph remains unchanged.

Section 1625.7(c)

    Section 1625.7(c) revises current section 1625.7(d). The 2008 
proposed rule stated that any employment practice that has an age-based 
adverse impact on individuals within the protected age group is 
discriminatory unless the practice is justified by a reasonable factor 
other than age. It also stated that the individual challenging the 
practice is responsible for isolating and identifying the specific 
employment practice responsible for the adverse impact.
    All of the commenters who addressed this section supported it. Four 
of them endorsed the section as written. Two of them generally 
supported the section but suggested changes to the first sentence. One 
commenter argued that the first sentence of the proposed rule 
inappropriately implied that the RFOA defense is the only defense 
applicable to disparate-impact claims under the ADEA. The commenter 
asserted that, although the Smith decision held that RFOA is an 
appropriate test for determining the lawfulness of an employment 
practice that has an age-based disparate impact, it did not hold that 
it was the only test. According to the commenter, section 4(f) \7\ of 
the ADEA permits other practices that might have a disparate impact on 
members of the protected age group. The commenter did not offer 
examples of such practices or otherwise explain how other defenses 
might apply in the disparate-impact context.
---------------------------------------------------------------------------

    \7\ 29 U.S.C. 623(f).
---------------------------------------------------------------------------

    The final rule, which has been redesignated 1625.7(c), retains the 
proposed language. The Supreme Court relied on the RFOA provision to 
conclude that the ADEA prohibits disparate-impact discrimination.\8\ 
The Court's determination that ADEA disparate-impact claims are 
cognizable because of the RFOA provision logically leads to the 
conclusion that RFOA is the defense to such claims. As the Court 
explained in Meacham, the RFOA defense fits \9\ as the appropriate 
defense

[[Page 19082]]

to a disparate-impact claim because the age-neutral employment practice 
causing the unlawful impact is ``other than age'' and ``otherwise 
prohibited.'' \10\
---------------------------------------------------------------------------

    \8\ Smith, 544 U.S. at 239.
    \9\ The applicability of a statutory defense to a claim depends 
on whether the defense appropriately responds to the facts raised. 
For example, the ``bona fide occupational qualification'' (``BFOQ'') 
defense in section 4(f)(1) applies to facially discriminatory 
policies, not to neutral practices. See Meacham, 554 U.S. at 92. The 
NPRMs proposed to revise section 1625.7 only, which is confined to 
the applicability of the RFOA defense and did not propose changes to 
other regulatory sections that apply to the ADEA's other affirmative 
defenses. See, e.g., 29 CFR 1625.6 (BFOQ), 1625.8 (seniority 
systems), 1625.10 (employee benefit plans). The regulations do not 
preclude an employer from asserting any statutory defense that 
responds to a particular claim. It should be noted that the ADEA's 
affirmative defenses in section 4(f)(1) (BFOQ and foreign workplace) 
and section 4(f)(2) (seniority system and bona fide employee benefit 
plan) structurally and historically apply to intent-based claims. 
See, e.g., 29 U.S.C. 623(f)(1), (2). See Trans World Airlines, Inc. 
v. Thurston, 469 U.S. 111, 121 (1985) (BFOQ and seniority system 
defenses raised to age-based denial of transfers); Mahoney v. Radio 
Free Europe/Radio Liberty, Inc., 47 F.3d 447 (DC Cir. 1995) (holding 
that foreign workplace defense applied to age-based mandatory 
retirement provision).
    \10\ Meacham, 554 U.S. at 93.
---------------------------------------------------------------------------

    Another commenter objected to the use of the term ``justified.'' 
The commenter asserted that the term is closely associated with Title 
VII's business-necessity test and that its use could cause confusion 
between the concepts of business necessity and RFOA. The final rule 
retains the term ``justified.'' Use of this term is consistent with the 
Meacham decision, which noted that the language of section 4(f)(1) 
``refers to an excuse or justification for behavior that, standing 
alone, violates the statute's prohibition.'' \11\ It is also consistent 
with 29 CFR 1625.7(b), the text of which has not been changed. The term 
``justified'' designates the party who bears the burden of proof, not 
the content of the defense. There is no question that the RFOA standard 
is lower than the business-necessity standard, as the rule makes clear.
---------------------------------------------------------------------------

    \11\ Id. at 95.
---------------------------------------------------------------------------

    The Commission has simplified the language in the second sentence 
of paragraph 1625.7(c). The sentence now refers to the employment 
practice ``that allegedly causes'' statistical disparities rather than 
the employment practice ``that is allegedly responsible for'' the 
disparities.
    Paragraph 1625.7(c) reflects the Supreme Court's conclusions that 
disparate-impact claims are cognizable under the ADEA, that the 
individual alleging disparate impact bears the burden of identifying 
the specific employment practice causing the alleged impact, and that 
the RFOA defense is the appropriate standard for determining the 
lawfulness of a practice that disproportionately affects older 
workers.\12\
---------------------------------------------------------------------------

    \12\ See Smith v. City of Jackson, 544 U.S. 228 (2005).
---------------------------------------------------------------------------

Section 1625.7(d)

    Section 1625.7(d) revises current section 1625.7(e). The proposed 
rule stated that, when the RFOA exception is raised, the employer has 
the burden of showing that a reasonable factor other than age exists 
factually. Five commenters supported the proposal, and four objected to 
placing the burden of proof on the employer. One commenter noted that 
the term ``exists factually'' was ambiguous and likely to lead to 
confusion.
    Subsequently, in Meacham v. Knolls Atomic Power Laboratory, the 
Supreme Court confirmed that the employer defending an ADEA claim of 
disparate impact has the RFOA burden of proof, i.e., the burden of 
persuasion as well as production.\13\ The Commission has revised the 
paragraph, which has been redesignated 1625.7(d), to reflect the 
Supreme Court's holding that the RFOA provision is an affirmative 
defense in disparate-impact cases for which the employer bears the 
burdens of production and persuasion. To avoid confusion, the 
Commission has deleted the phrase ``exists factually.''
---------------------------------------------------------------------------

    \13\ 554 U.S. 84, 97 (2008).
---------------------------------------------------------------------------

    The Commission also has revised the rule to clarify that the RFOA 
affirmative defense is unavailable in disparate-treatment cases. In 
Smith, the Court rejected the argument that the RFOA exemption acted 
simply as a ``safe harbor'' in disparate-treatment cases.\14\ As the 
Supreme Court explained in Smith,\15\ the ``other than age'' element of 
the RFOA provision makes the defense inapplicable to a claim 
conditioned on an age-based intent to discriminate.
---------------------------------------------------------------------------

    \14\ 544 U.S. at 238-39. Although the majority opinion 
specifically rejected Justice O'Connor's view of the RFOA as a 
``safe harbor analogous to the legitimate nondiscriminatory reason 
(LNR) justification,'' it did not respond to her contention that the 
``RFOA provision also plays a distinct (and clearly nonredundant) 
role in `mixed-motive' cases.'' 544 U.S. at 253. Thus, the 
majority's phrasing that the RFOA provision ``plays its principal 
role'' in disparate-impact cases seems to refer to the notion that 
it might have a role in mixed-motives cases. Any such role has been 
obviated, however, by the Court's subsequent holding that the ADEA 
does not permit ``mixed-motives'' claims. Gross v. FBL Financial 
Servs. Inc., 557 U.S. 167 (2009).
    \15\ 544 U.S. at 238.
---------------------------------------------------------------------------

Section 1625.7(e)

    Section 1625.7(e) revises current section 1625.7(b). The proposed 
rule noted that whether a differentiation is based on reasonable 
factors other than age must be decided on the basis of all the 
particular facts and circumstances surrounding each individual 
situation. The final rule retains this language, which emphasizes that 
the RFOA determination involves a fact-intensive inquiry.\16\ For 
organizational purposes, the Commission has changed the order of the 
sentences in the paragraph.
---------------------------------------------------------------------------

    \16\ The determination of whether an employer establishes a 
``reasonable factors other than age'' defense is a jury question. 
See EEOC v. Allstate Ins. Co., 458 F. Supp.2d 980, aff'd, 528 F.3d 
1042 (8th Cir.), reh'g en banc granted and opinion vacated on other 
grounds (Sept. 8, 2008).
---------------------------------------------------------------------------

    The proposed rule divided the discussion of ``reasonable factors 
other than age'' into two paragraphs, ``reasonable'' and ``factors 
other than age,'' and listed factors relevant to each paragraph. The 
``reasonable'' paragraph noted that a reasonable factor is one that is 
objectively reasonable when viewed from the position of a reasonable 
employer (i.e., a prudent employer mindful of its responsibilities 
under the ADEA) under like circumstances. It stated that an employer 
must show that an employment practice was reasonably designed to 
achieve a legitimate business purpose and was administered in a way 
that reasonably achieves that purpose in light of the facts that were 
known or should have been known to the employer. It included a non-
exhaustive list of factors relevant to whether an employment practice 
is reasonable.
    The ``factors other than age'' paragraph noted that the RFOA 
defense applies only if the practice was not based on age. It stated 
that, in the typical disparate-impact case, the practice is based on an 
objective non-age factor and the only question is whether the practice 
is reasonable. The paragraph noted, however, that a disparate impact 
may be based on age when decision makers are given unchecked discretion 
to engage in subjective decision making and, as a result, act on the 
basis of conscious or unconscious age-based stereotypes. It included a 
non-exhaustive list of factors relevant to whether a factor is other 
than age.
Factors Other Than Age
    Some commenters argued that the ``other than age'' paragraph 
conflated disparate treatment and disparate impact and improperly 
shifted the burden of proof by requiring the employer to prove that the 
challenged employment action was not based on age. They also argued 
that the paragraph conflicted with Meacham's statement that the RFOA 
defense assumes that a non-age factor is at work.
    In response to comments, and to ensure that the rule is not 
misconstrued as placing a disparate-treatment burden of proof on 
employers, the Commission has revised the discussion into a subsection, 
which has been redesignated 1625.7(e)(1)-(3), addressing the term 
``reasonable factors other than age.'' The Commission also has revised 
the lists into a single, non-exhaustive description of considerations 
relevant to the RFOA defense.

[[Page 19083]]

    The final rule states that 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 reference to ``non-age factor'' 
recognizes that ``other than age'' is an express part of the statutory 
RFOA defense.\17\
---------------------------------------------------------------------------

    \17\ 29 U.S.C. 623(f)(1); see also Smith, 544 U.S. at 239 
(noting that the RFOA defense ``preclud[es] liability if the adverse 
impact was attributable to a nonage factor that was `reasonable' 
''). When an employer asserts purportedly neutral criteria, the RFOA 
defense is not available if age is a component of the employer's 
practice or policy. See, e.g., City of Los Angeles, Dept. of Water & 
Manpower v. Manhart, 435 U.S. 702 (1978) (rejecting employer's 
assertion of neutral criterion of ``longevity'' where sex determined 
longevity).
---------------------------------------------------------------------------

Prudent Employer
    The preamble to the proposed rule stated that, in light of Smith 
and Meacham, a prudent employer would know that the ADEA was designed 
in part to avoid the application of neutral standards that 
disproportionately affect older workers. One commenter, noting that 
more than thirty years had passed between the enactment of the ADEA and 
the Supreme Court's determination that the law covered disparate-impact 
claims, questioned the Commission's statement. Another commenter agreed 
with the Commission and pointed out that the Court had decided Smith 
nearly five years, and Meacham nearly two years, before publication of 
the NPRM.
    The Supreme Court's decisions in Smith and Meacham confirmed EEOC's 
longstanding position \18\ that disparate-impact claims are cognizable 
under the ADEA and that employers have the burden of establishing the 
RFOA defense. The decisions also validated the 1965 Wirtz Report's 
concern about ``institutional arrangements'' that unintentionally limit 
the opportunities of older workers.\19\ Courts had applied disparate-
impact analysis to ADEA claims for many years,\20\ and it was only 
after the Court's 1993 Hazen Paper decision \21\ that some courts held 
that disparate-impact claims were not cognizable under the ADEA.\22\ 
Therefore, the Commission continues to believe that a prudent employer 
mindful of its ADEA responsibilities should know that the law prohibits 
the use of neutral practices that disproportionately affect older 
workers and are not based on reasonable factors other than age. A 
reasonable factor other than age is one that an employer exercising 
reasonable care would use to avoid limiting the opportunities of older 
workers, in light of all the surrounding facts and circumstances.\23\
---------------------------------------------------------------------------

    \18\ See 29 CFR 1625.7.
    \19\ Report of the Sec'y of Labor, The Older American Worker: 
Age Discrimination in Employment 15-17 (1965), reprinted in U.S. 
EEOC, Leg. History of the ADEA 32-34 (1981) (discussing ``[a] broad 
range of personnel programs and practices [that] affect the 
employment of the older worker, although they were not developed for 
this purpose'') (hereinafter ``Wirtz Report'').
    \20\ See, e.g., Maresco v. Evans Chemetics, 964 F.2d 106, 115 
(2d Cir. 1992); Abbott v. Fed. Forge, Inc., 912 F.2d 867, 872-77 
(6th Cir. 1990); Leftwich v. Harris-Stowe State Coll., 702 F.2d 686 
(8th Cir.1983); Geller v. Markham, 635 F.2d 1027 (2d Cir.1980).
    \21\ 507 U.S. 604 (1993).
    \22\ See, e.g., Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 
1999); Ellis v. United Airlines, Inc., 73 F.3d 999, 1006-10 (10th 
Cir. 1996); EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1077-78 
(7th Cir. 1994). But see Frank v. United Airlines, Inc., 216 F.3d 
845, 856 (9th Cir. 2000) (disparate-impact claims cognizable under 
ADEA); Criley v. Delta Air Lines Inc., 119 F.3d 102, 105 (2d Cir. 
1997) (same); Smith v. City of Des Moines, 99 F.3d 1466, 1470 (8th 
Cir. 1996) (same).
    \23\ See Smith, 544 U.S. at 235 n.5 (quoting Wirtz Report's 
discussion of employment standards that unfairly disadvantage older 
workers); cf. Faragher v. City of Boca Raton, 524 U.S. 775, 808-09 
(1998) (rejecting employer's argument that it should not be held 
liable for negligently failing to promulgate anti-harassment policy 
where EEOC regulations advised employers to take all steps necessary 
to prevent harassment and holding as a matter of law that employer 
did not exercise reasonable care to prevent sexual harassment).
---------------------------------------------------------------------------

Reference to Tort Law
    The proposed rule relied on tort principles when discussing what 
constitutes a ``reasonable'' factor other than age. Some commenters 
thought that the reference to tort law was practical and sensible. 
Others, however, objected to the use of tort law. They argued that 
employment discrimination law provides sufficient guidance for 
determining whether a practice is based on reasonable, 
nondiscriminatory factors and that the rule inappropriately imports the 
concept of ``reasonable employer'' into the RFOA analysis. One 
commenter asserted that, whereas tort law and sexual-harassment theory 
assess reasonableness in terms of an individual's efforts to avoid 
harm, the RFOA analysis assumes and permits disparate impact. Another 
commenter asserted that it is unfair to rely on some tort principles 
without including the concepts of contributory negligence and 
assumption of the risk.
    The final rule continues to refer to tort principles. Employment 
discrimination law includes little discussion of reasonableness whereas 
tort law extensively analyzes the concept. Indeed, the Supreme Court 
recently made clear that federal nondiscrimination laws are torts and 
that ``when Congress creates a federal tort [we presume that] it adopts 
the background of general tort law.'' \24\ Prior to Staub, the Supreme 
Court noted in Faragher v. City of Boca Raton \25\ that lower courts 
have unanimously applied tort negligence standards to determine 
employer liability for co-worker harassment. Similarly, the Court 
turned to tort principles to determine what mental state warrants 
punitive damages.\26\ Lower courts also have turned to tort law for 
guidance in resolving employment discrimination cases.\27\
---------------------------------------------------------------------------

    \24\ Staub v. Proctor Hosp., 131 S. Ct. 1186, 1191 (2011) 
(citing, among other decisions, Burlington Indus., Inc. v. Ellerth, 
524 U.S. 742, 764 (1998)).
    \25\ 524 U.S. 775, 799 (1998). In Faragher and Ellerth, the 
Court crafted a duty-of-care defense in hostile-environment cases 
without any statutory language directing it to do so.
    \26\ Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 538 (1999).
    \27\ E.g., Baskerville v. Culligan Int'l Co., 50 F.3d 428, 432 
(7th Cir. 1995) (reasonableness of employer's steps to discover and 
correct sexual harassment ``depends on the gravity of the 
harassment''); see also Erickson v. Wis. Dep't of Corr., 469 F.3d 
600, 604 (7th Cir. 2006) (``The greater the potential injury to the 
employee, the greater care the employer must take.'') (citing 
Baskerville); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 
1990) (noting, in an age case, that discrimination constitutes a 
tort).
---------------------------------------------------------------------------

    The fundamental objective of employment discrimination statutes, 
``like that of any statute meant to influence primary conduct, is * * * 
to avoid harm.'' \28\ Tort law, too, focuses on the duty to avoid harm 
and provides guiding principles to help understand reasonableness in 
this context. Under the ADEA, employers are required to avoid the harm 
of using facially neutral practices that impair employment 
opportunities for older workers and are not reasonable.\29\ Whether a 
factor is reasonable can be determined only in light of all of the 
surrounding facts and circumstances, including the employer's duty to 
be cognizant of the consequences of its choices.
---------------------------------------------------------------------------

    \28\ Faragher, 524 U.S. at 806 (citing Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 417 (1975)).
    \29\ See Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 101 
(2008); Smith v. City of Jackson, 544 U.S. 228, 234-5 & n.5 (2005).
---------------------------------------------------------------------------

    The assertion that the rule should not refer to tort law without 
importing the concepts of contributory negligence and assumption of the 
risk into the RFOA analysis misapprehends the rule's reference to tort 
law. The rule does not import tort principles wholesale; rather, it 
merely refers to tort law for guidance. Like the defense to harassment, 
the RFOA defense considers what the employer knew about the harm and 
what it did to correct it. Negligence principles as applied to co-
worker harassment do not address the concepts of contributory 
negligence and assumption of the risk, and there is no

[[Page 19084]]

need to address those concepts in the RFOA context. Moreover, employees 
do not ``contribute'' (negligently or otherwise) to an employer's use 
of an employment practice that has an age-based disparate impact. In 
addition, it would be contrary to the purposes of the anti-
discrimination laws to assert that any employee voluntarily assumes the 
risk of being subject to discrimination.\30\
---------------------------------------------------------------------------

    \30\ McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995) 
(the ADEA is part of a wider statutory scheme to protect employees 
in the workplace nationwide). Allowing an assumption-of-risk defense 
would defeat the ADEA's deterrent purpose; it would allow employers 
to avoid liability simply by advertising the fact that they will 
discriminate. See Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir. 
1999) (dismissing the idea that discriminatory actions can be 
excused by a prevailing workplace culture that has included 
exclusionary practices and bigotry and stating, ``There is no 
assumption-of-risk defense to charges of workplace 
discrimination.''); Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 
1292 (8th Cir. 1997) (holding that an employer's liability for sex 
discrimination is not mitigated by the fact that the work 
environment was known to have an egregiously discriminatory 
culture); Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir. 
1999) (`women working in the [male-dominated] trades do not deserve 
less protection from the law than women working in a courthouse').''
---------------------------------------------------------------------------

Design and Administration of Employment Practice
    The proposed rule looked at ``reasonable'' from the position of a 
prudent employer and considered how the challenged employment practice 
is designed and administered. Some commenters agreed that the rule 
should look at how the practice is applied as well as at how it is 
designed. Other commenters, however, argued that this approach 
inappropriately focuses on the employer's decision-making process 
rather than on the factor upon which the decision was based. In their 
view, the RFOA inquiry should focus on the factor underlying the 
employment practice, not on whether the employer acted reasonably in 
selecting the factor.
    The final rule continues to focus on how the employment practice is 
designed and administered. The RFOA defense arises after an employment 
practice has been shown to have an age-based disparate impact. In that 
context, the concept of ``reasonable factor'' necessarily includes 
consideration of the reasonableness of the factor's application. Thus, 
the Smith Court considered not just the City of Jackson's goal of 
retaining police officers, but also the design and administration of 
the pay plan used to achieve that goal.\31\
---------------------------------------------------------------------------

    \31\ See Smith, 544 U.S. at 242. (``Reliance on seniority and 
rank is unquestionably reasonable given the City's goal of raising 
employees' salaries to match those in surrounding communities. * * * 
[T]he City's decision to grant a larger raise to lower echelon 
employees for the purpose of bringing salaries in line with that of 
surrounding police forces was a decision based on a `reasonable 
facto[r] other than age' that responded to the City's legitimate 
goal of retaining police officers.'').
---------------------------------------------------------------------------

    The way in which an employer applies the factor is probative of 
whether it is reasonable; a practice that seems reasonable in the 
abstract might not be reasonable in its application. For example, an 
employer might require candidates for jobs in its meat-processing plant 
to pass a physical strength test. It would be reasonable for the 
employer to design a test that accurately measures the ability to 
perform the job successfully. It would be manifestly unreasonable, 
however, for the employer to administer the test inconsistently, 
evaluate results unevenly, or judge test takers unreliably. Similarly, 
although it might well be reasonable for an employer to conduct a 
reduction-in-force (RIF) to save money, if an identified employment 
practice caused older workers to be disparately impacted, the cost-
cutting goal alone would not be sufficient to establish the RFOA 
defense. The employer would have to show that the 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.
``Reasonable'' and ``Rational Basis''
    The preamble to the proposed rule noted that the RFOA defense 
requires that a practice be reasonable, which is different from 
requiring only that it be rational. Some commenters argued that the 
RFOA standard should be a rational-basis standard and that 
``reasonable'' means not irrational or not arbitrary. Other commenters 
commended the EEOC for clarifying that the reasonableness test is not a 
rational-basis test.
    The Commission continues to believe that the RFOA defense is more 
stringent than a rational-basis or non-arbitrary standard for several 
reasons. First, the Supreme Court has held that the RFOA provision 
``confirms that Congress, through the ADEA, has effectively elevated 
the standard for analyzing age discrimination to heightened scrutiny.'' 
\32\ In other words, the Supreme Court has previously recognized that 
the RFOA reflects a standard of proof higher than a rational-basis 
standard.
---------------------------------------------------------------------------

    \32\ Kimel v. Florida Bd. of Regents, 528 U.S. 62, 88 (2000). 
The Kimel Court held that the ADEA did not validly abrogate states' 
Eleventh Amendment immunity from suit by private individuals because 
it ``prohibits substantially more * * * than would likely be held 
unconstitutional under the * * * rational basis standard.'' Id. at 
86. The Court concluded that ``[the RFOA] exception confirms, * * * 
rather than disproves, the conclusion that the ADEA's protection 
extends beyond the requirements of the Equal Protection Clause.'' 
Id. at 88.
---------------------------------------------------------------------------

    Second, proof that an action was rational or non-arbitrary focuses 
on whether an articulated reason is a pretext for intentional 
discrimination.\33\ Thus, equating the RFOA defense with a rational-
basis standard would improperly conflate ADEA disparate-treatment and 
disparate-impact standards of proof. If an employer attempting to 
establish the RFOA defense were only required to show that it had acted 
rationally, then the employer would merely be required to show that it 
had not engaged in intentional age discrimination. In Smith, the 
Supreme Court bluntly held that the RFOA provision is not a statutory 
safe harbor from liability for disparate treatment when the employer 
merely had a rational justification for its actions.\34\
---------------------------------------------------------------------------

    \33\ Smith, 544 U.S. at 253.
    \34\ Id. at 238-39 (rejecting Justice O'Connor's argument that 
``the RFOA provision's reference to `reasonable' factors serves only 
to prevent the employer from gaining the benefit of the statutory 
safe harbor by offering an irrational justification.'' Id. at 253).
---------------------------------------------------------------------------

    Thus, the Supreme Court concluded that the ADEA prohibits more than 
intentional discrimination; it also prohibits employers from adopting 
facially neutral practices that disproportionately exclude older 
workers unless the employer can prove that its actions were based on 
reasonable factors other than age. In holding that the RFOA provision 
is the defense to disparate-impact claims, the Supreme Court recognized 
that the RFOA defense is distinguishable in form and substance from the 
``legitimate, nondiscriminatory reason'' evidence that the employer 
must produce in individual disparate-treatment cases.\35\ The RFOA 
defense necessarily requires more than merely a showing that the 
employer's action was not irrational or not arbitrary.\36\ To adopt 
commenters' assertions would be to nullify the Smith and Meacham 
holdings and undermine the intent of Congress to address ``the

[[Page 19085]]

consequences of employment practices, not simply the motivation.'' \37\
---------------------------------------------------------------------------

    \35\ Id. at 238-39 (rejecting Justice O'Connor's contention that 
RFOA is safe harbor from liability, because employer can defeat 
liability in disparate-treatment case by showing that employee was 
rejected for legitimate, nondiscriminatory reason) (citing Texas 
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)); see 
also Meacham, 554 U.S. at 96, n.12. 
    \36\ Smith, 544 U.S. at 238-39.
    \37\ Id. at 234-35 and n.5 (``just as Griggs recognized that the 
high school diploma requirement, which was unrelated to job 
performance, had an unfair impact on African-Americans * * * the 
Wirtz Report identified the identical obstacle to the employment of 
older workers'').
---------------------------------------------------------------------------

    Third, a rational basis standard would also undercut the Court's 
recognition of the RFOA as an affirmative defense. Under a rational-
basis standard, an action ``may be based on rational speculation 
unsupported by evidence or empirical data.'' \38\ The decision maker is 
not required ``to articulate at any time the purpose or rationale 
supporting its classification,'' \39\ and an action will be upheld ``if 
there is any reasonably conceivable state of facts that could provide a 
rational basis for the classification.'' \40\ By that measure, the 
``reasonable'' requirement would afford no protection against practices 
that have an age-based disparate impact.\41\
---------------------------------------------------------------------------

    \38\ FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315 (1993) 
(Cable Communications Policy Act's distinction between cable 
television facilities that serve separately owned buildings and 
those that serve buildings under common ownership, 47 U.S.C. 
522(7)(B), is rationally related to a legitimate government purpose 
under the Fifth Amendment's Due Process Clause).
    \39\ Nordlinger v. Hahn, 505 U.S. 1, 15 (1992) (taxation system 
focusing on acquisition value of real property rationally furthers 
legitimate state interests for purposes of the Equal Protection 
Clause of the Fourteenth Amendment).
    \40\ FCC v. Beach Commc'ns, Inc., 508 U.S. at 313.
    \41\ See id. at 323 n.3 (``Judicial review under the 
`conceivable set of facts' test is tantamount to no review at 
all.'') (Stevens, J., concurring); see also W. Air Lines, Inc. v. 
Criswell, 472 U.S. 400, 422 n. 36 (1985) (rejecting rational-basis 
standard for ``bona fide occupational qualification'' defense where, 
``under a `rational basis' standard a jury might well consider that 
its `inquiry is at an end' with an expert witness' articulation of 
any `plausible reaso[n]' for the employer's decision'') (quoting 
United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)).
---------------------------------------------------------------------------

    Finally, equating the RFOA reasonableness requirement with a 
rational-basis standard would contradict the Smith Court's holding that 
the ``reasonable'' requirement shows that the RFOA provision is more 
stringent than the Equal Pay Act's (``EPA'') ``any other factor'' 
defense.\42\ Indeed, applying the rational-basis test to the RFOA 
defense would actually make it less stringent than the EPA's ``any 
other factor'' defense as the latter has been construed by the EEOC and 
some courts, which have taken the position that, even under the Equal 
Pay Act, an employer asserting an ``any other factor other than sex'' 
defense must show that the factor is related to job requirements or 
otherwise is beneficial to the employer's business.\43\
---------------------------------------------------------------------------

    \42\ See Smith, 544 U.S. at 239 n.11 (2005) (finding it '' 
instructive'' that, in contrast to providing an ``any other factor'' 
defense under the Equal Pay Act, 29 U.S.C. 206(d)(1), ``Congress 
provided that employers could use only reasonable factors in 
defending a suit under the ADEA'') (emphasis in the original).
    \43\ EEOC Compliance Manual, Compensation Discrimination 10-
IV.F.2 (2000) (``An employer asserting a `factor other than sex' 
defense also must show that the factor is related to job 
requirements or otherwise is beneficial to the employer's 
business.''); see also Aldrich v. Randolf Cent. Sch. Dist., 963 F.2d 
520, 525-26 (2d Cir. 1992) (factor other than sex must be grounded 
in legitimate business-related concerns); EEOC v. J.C. Penny Co., 
843 F.2d 249, 253 (6th Cir. 1988) (factor-other-than-sex defense 
requires a legitimate business reason); Glenn v. Gen. Motors Corp., 
841 F.2d 1567, 1571 (11th Cir. 1988) (defense ``applies when the 
disparity results from unique characteristics of the same job; from 
an individual's experience, training, or ability; or from special 
exigent circumstances connected with the business''); Kouba v. 
Allstate Ins. Co., 691 F.2d 873, 876-77 (9th Cir. 1982) (employer 
must have an acceptable business reason and ``must use the factor 
reasonably in light of the employer's stated purpose as well as its 
other practices''). But see Behm v. United States, 68 Fed. Cl. 395, 
400-01 (Fed. Cir. 2005) (text of EPA does not suggest that factor 
other than sex must be business related; applying ``deferential'' 
rational-basis standard to any-other-factor defense of federal 
government employer ``whose business is not business, but 
government''); Taylor v. White, 321 F.3d 710, 720 (8th Cir. 2003) 
(any-other-factor defense does not involve a reasonableness 
inquiry); Fallon v. State of Ill., 882 F.2d 1206, 1211 (7th Cir. 
1989) (business-related reason need not be shown).
---------------------------------------------------------------------------

``Reasonable'' and ``Business Necessity''
    The February 2010 Notice of Proposed Rulemaking emphasized that the 
proposed RFOA standard was lower than the business-necessity test of 
Title VII of the Civil Rights Act of 1964,\44\ but higher than the 
Equal Pay Act's ``any other factor'' test.\45\ It also stated that the 
factors relevant to the reasonableness inquiry recognize that the RFOA 
standard is less stringent than the business-necessity standard and 
that disparate-impact liability is narrower under the ADEA than under 
Title VII.
---------------------------------------------------------------------------

    \44\ 42 U.S.C. 2000e-2(k)(1)(A)(i) (a particular employment 
practice that has a disparate impact based on race, color, religion, 
sex, or national origin is unlawful unless the employer 
``demonstrate[s] that the challenged practice is job related for the 
position in question and consistent with business necessity'').
    \45\ 29 U.S.C. 206(d)(1)(iv) (permitting sex discrimination in 
wages pursuant to a ``differential based on any factor other than 
sex.'')
---------------------------------------------------------------------------

    Several commenters expressed the view that the proposed rule 
impermissibly imposed Title VII's business-necessity test on ADEA 
defendants. One of the commenters suggested that EEOC revise the 
language to state that the factors ``may'' be relevant to the RFOA 
determination. The commenters' arguments generally centered on the 
mistaken view that the factors were requirements, and that the factors 
concerning employers' efforts to assess impact, minimize harm, and 
weigh options amounted to a business-necessity requirement.
    In response, the Commission has made several changes. To address 
the commenters' view that the factors were required elements or duties, 
the rule now refers to ``considerations'' relevant to demonstrating the 
defense. The rule sets forth a non-exhaustive description of relevant 
considerations, rather than a list of duties to be met. Because the 
RFOA determination involves a fact-intensive inquiry, the importance of 
a consideration depends on the facts of the particular situation. Based 
on the specific facts raised, one or two considerations may be 
sufficient to establish the RFOA defense.
    In addition, the rule expressly states that no specific 
consideration or combination of considerations need be present for a 
differentiation to be based on reasonable factors other than age and 
that the presence of one consideration does not automatically establish 
the defense. Just as the absence of a consideration does not 
automatically defeat the RFOA defense, so too the presence of one 
consideration does not necessarily prove that a differentiation is 
based on reasonable factors other than age. Rather, as the rule makes 
clear, the RFOA determination depends on all of the facts and 
circumstances in each particular situation.
    The Commission disagrees that consideration of efforts to assess 
impact, reduce harm, and weigh options suggests a Title VII business-
necessity analysis. However, the Commission has deleted the factor 
concerning the availability of options because some commenters 
misconstrued the factor as imposing the Title VII standard that the 
employer must search for and select the least discriminatory 
alternative.\46\ Removal of the factor does not mean that the 
availability of measures to reduce harm is irrelevant to

[[Page 19086]]

reasonableness. There may be circumstances in which the availability of 
a measure that would noticeably reduce harm was or should have been so 
readily apparent that it would be manifestly unreasonable for the 
employer to fail to use it. The removal of the factor does, however, 
make clear that an employer need not search for alternatives and use 
the one that is least discriminatory. These changes, along with the 
clarification that none of the considerations is a required element of 
the RFOA defense, make clear the distinction between the ADEA RFOA 
standard and Title VII's business-necessity standard.
---------------------------------------------------------------------------

    \46\ Three commenters disagreed with the Commission's statement, 
in the preamble to the proposed rule, that Title VII requires an 
employer to adopt the least discriminatory alternative. Under Title 
VII, once the employer establishes that the challenged practice is 
job related and consistent with business necessity, the burden 
shifts to the plaintiff to demonstrate that there is an alternative 
employment practice that the employer refuses to adopt. 42 U.S.C. 
2000e-2(k)(1)(A)(ii), 2000e-2(k)(1)(C) (adopting pre-Wards Cove 
approach to ``alternative employment practice''). The alternative 
must be less discriminatory and must serve the employer's legitimate 
business needs. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 
(1975); Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also 
Ricci v. DeStefano, 129 S. Ct. 2658, 2673 (2009). As a practical 
matter, an employer that does not adopt the least discriminatory 
effective alternative proposed by the plaintiff will not prevail in 
a Title VII disparate-impact case because the plaintiff will be able 
to establish the existence of a less discriminatory alternative. 
That is not the case under the ADEA, whose RFOA standard is less 
stringent than Title VII's business-necessity standard. Smith, 544 
U.S. at 243.
---------------------------------------------------------------------------

    Under Title VII, if a particular employment practice has a 
disparate impact based on race, color, religion, sex, or national 
origin, then the employer must ``demonstrate that the challenged 
practice is job related for the position in question and consistent 
with business necessity.'' \47\ An employer could meet the Title VII 
standard by proving, for example, that a test has been validated to 
show that it is ``predictive of * * * important elements of work 
behavior which comprise * * * the job.'' \48\ In contrast, the RFOA 
defense involves the less demanding standard of reasonableness.
---------------------------------------------------------------------------

    \47\ 42 U.S.C. 2000e-2(k)(1)(A)(i).
    \48\ Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 434 
(1975). The business-necessity standard has been articulated in 
other ways. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 331 n.14 
(1977) (``necessary to safe and efficient job performance''); Griggs 
v. Duke Power Co., 401 U.S. 424, 432 (1971) (employment practice 
must bear a ``manifest relationship to the employment in 
question''); El v. Se. Pa. Trans. Auth., 479 F.3d 232, 242, 245 (3d 
Cir. 2007) (practice at issue must ``accurately--but not perfectly--
ascertain[] an applicant's ability to perform successfully the job 
in question'').
---------------------------------------------------------------------------

    Application of the rule's considerations to a physical fitness test 
\49\ illustrates the difference between the RFOA and business-necessity 
standards. For example, suppose a security company mandated that all 
applicants for security guard positions must be able to run a half mile 
in three minutes and do 35 push ups in a row. The company's stated 
purpose is to ensure that guards are physically able to pursue and 
apprehend suspects (consideration (i)). The test defines and measures 
the factors of speed and strength and provides clear guidance on how 
the test is to be applied accurately and fairly (consideration (ii)). 
The employer performs a disparate-impact analysis and finds that large 
percentages of older workers and women cannot pass the test. 
(consideration (iv)). The employer changes the test so that performance 
standards vary based on age and gender, when it learns that a 
successful competitor firm uses such standards and is attracting a 
large pool of qualified candidates. Although the test continues to 
disproportionately exclude older and female applicants, it excludes 
fewer of them and still produces qualified hires (consideration (v)).
---------------------------------------------------------------------------

    \49\ It is important to emphasize that physical-fitness 
requirements must be relevant to successful performance of the 
particular job, so as to avoid the use of such tests to restrict the 
hiring of older workers when there is no basis for such 
requirements, as the 1965 Wirtz Report documented. See Wirtz Report 
at 4. Subjecting only older workers to a particular test would be 
facially discriminatory and the RFOA defense would not apply. See, 
e.g., EEOC v. Massachusetts, 987 F.2d 64, 73 (1st Cir. 1993) 
(rejecting RFOA defense to practice requiring employees to pass 
physical fitness exam at age 70).
---------------------------------------------------------------------------

    The security company would not need to perform a validation study 
to establish the RFOA defense. In contrast, to establish a Title VII 
business-necessity defense, the employer would need to validate the 
test to show that it accurately measured safe and efficient 
performance. In addition, even if the employer could show that the test 
was validated, proof by female applicants that there were less 
discriminatory alternatives that the employer refused to adopt would 
impose liability under Title VII. This is just one example of how the 
RFOA standard is less stringent than Title VII's business-necessity 
standard.
Relevant Considerations
    The proposed rule set forth non-exhaustive lists of factors 
relevant to whether an employment practice is reasonable and is based 
on factors other than age. Although, as discussed above, some 
commenters objected to some of the factors, other commenters found the 
lists useful and generally supported them. One commenter suggested that 
EEOC provide guidance on the types of evidence relevant to the factors 
and argued that the evidence should be objective, in existence before 
litigation, and more than mere self-serving statements. Another 
commenter stated that no single factor should be dispositive of whether 
an employment practice is reasonable.
    Given the context-specific nature of the RFOA inquiry, it is not 
possible to specify every type of relevant evidence. All relevant 
evidence should be considered, and such evidence necessarily will vary 
according to the facts of each particular situation. Depending on the 
circumstances, relevant evidence might include documents describing the 
business purpose underlying the challenged practice, copies of any 
written guidance that the employer provided to decision makers, 
explanations of how the employer implemented the practice, and impact-
related studies that the employer may have conducted. Objective 
evidence that was in existence prior to litigation will carry more 
weight than mere self-serving statements or after-the-fact rationales.
    The first ``reasonable'' factor listed in the proposed rule 
concerned whether the employment practice and its implementation were 
common business practices. One commenter supported this factor because, 
as a factor rather than a required element, it would allow employers to 
defend their actions while ensuring that discriminatory practices that 
may be common in an industry are not given weight. Other commenters 
opposed the factor. Some commenters argued, for example, that the 
factor could stifle employer creativity and was not relevant to whether 
a particular employer's practice was reasonable under particular 
circumstances. Others argued that the commonality of a practice has no 
bearing on whether it is discriminatory and expressed concern that the 
factor could allow an employer to defend a practice when there is 
industry-wide discrimination. One commenter suggested that the factor 
should refer to common practices in comparable settings rather than to 
common business practices.
    In light of the variety of concerns about this factor, the 
Commission has deleted it from the relevant considerations.
Section 1625.7(e)(2)(i)
    The second item in the proposed rule's list of factors relevant to 
``reasonableness'' concerned the extent to which the factor is related 
to the employer's stated business goal. One commenter thought that the 
factor encompassed the essence of the RFOA defense but suggested that 
the term ``stated'' be deleted. Another commenter thought that the term 
``stated'' was vague and wondered whether it meant that an employer 
must state its goal in advance.
    The Commission has revised the provision, which has been 
redesignated 1625.7(e)(2)(i), to refer to an employer's ``stated 
business purpose,'' which is the legitimate business purpose that the 
employer had at the time of the challenged employment practice. This 
approach is consistent with Smith, which expressly noted that the 
City's ``stated purpose * * * was to `attract and retain qualified 
people, provide incentive for performance, maintain competitiveness 
with other public sector agencies and ensure equitable compensation to 
all employees

[[Page 19087]]

regardless of age, sex, race and/or disability.' '' \50\ The City 
reasonably achieved this purpose by raising the salaries of junior 
officers to make them competitive with those of comparable positions in 
the region.\51\ Similarly, an employer whose stated purpose is to hire 
qualified candidates could reasonably achieve this purpose by ensuring 
that its hiring criteria accurately reflect job requirements.
---------------------------------------------------------------------------

    \50\ Smith, 544 U.S. at 231.
    \51\ Id. at 242.
---------------------------------------------------------------------------

Section 1625.7(e)(2)(ii)
    The proposed rule said that the extent to which the employer took 
steps to define and apply the factor accurately and provided training, 
guidance, and instruction to managers was relevant to reasonableness. 
Three commenters supported this factor. One of them noted that training 
and guidance are sound business practices that are not burdensome. Two 
commenters objected to this factor. One argued that this factor is not 
necessary because it is subsumed under the factor concerning the 
employment practice's relation to the employer's stated business goals. 
The other commenter argued that, although providing guidance and 
training to managers may be good business practice and may enhance an 
employer's RFOA defense, the ADEA does not require employers to take 
such steps.
    The proposed rule also included consideration of the extent to 
which supervisors were given guidance or training in the ``other than 
age'' section. Two commenters supported this factor as written, one 
commenter asked for guidance on the type of training that will help 
supervisors to make decisions based on objective rather than subjective 
criteria, and one commenter argued that an employer should lose its 
affirmative defense if the employer does not train its managers on 
subjective decision making. One commenter opposed this factor and 
suggested that EEOC work with stakeholders to determine whether an 
employer's preventive training measures should be a Faragher-type 
defense \52\ to ADEA disparate-treatment claims. Another commenter 
asked how often training should be conducted and suggested that 
training should be required for all protected bases if it is required 
for age discrimination.
---------------------------------------------------------------------------

    \52\ Faragher v. City of Boca Raton, 524 U.S. 775 (1998) 
(employer not liable for supervisor harassment that did not result 
in tangible employment action if employer exercised reasonable care 
to prevent and promptly correct any harassment and employee 
unreasonably failed to complain to management or to avoid harm 
otherwise).
---------------------------------------------------------------------------

    As discussed, the Commission has eliminated the ``other than age'' 
section and has combined the factors relating to guidance and 
instruction of managers into a single consideration, which has been 
designated 1625.7(e)(2)(ii). The Commission has deleted the reference 
to ``took steps'' to make clear that the consideration focuses on how 
the employer actually defined and applied its criteria. Through this 
consideration, the final rule recognizes the importance of defining an 
employment criterion carefully and educating managers and supervisors 
on how to apply it fairly.
    As commenters noted, it is in the employer's interest to define and 
apply accurately the criteria on which it relies. Ensuring that 
decision makers understand and know how to apply the employer's 
standard will help to ensure that the employer has the work force it 
wants. For example, research demonstrates that older workers are 
commonly perceived to be less productive than younger workers but that 
such stereotypes are inaccurate.\53\ In fact, studies show a 
nonexistent or slightly positive relationship between job performance 
and older age.\54\ The output of older workers is equal to that of 
younger workers; \55\ older workers are better in terms of accuracy and 
steadiness of work output and output level; \56\ and they outperform 
younger workers in the area of sales.\57\ Thus, educating decision 
makers to be aware of, and avoid, age-based stereotypes can help to 
ensure that they apply the employer's standard accurately and do not 
unfairly limit the opportunities of older workers.
---------------------------------------------------------------------------

    \53\ Robert McCann & Howard Giles, Ageism in the Workplace: A 
Communication Perspective, in Ageism: Stereotyping and Prejudice 
Against Older Persons 163, 172 (Todd D. Nelson ed. 2002) (citing 
J.O. Britton & K.R. Thomas, Age and Sex as Employment Variables: 
Views of Employment Service Interviewers, 10 J. Emp. Counseling 180 
(1973); S. Cole, Age and Scientific Performance, 84 a.m. J. 
Sociology 958 (1979); A. Roe, Changes in Scientific Activities with 
Age, 150 Sci. 313 (1965); P. E. Panek et al., Age Differences in 
Perceptual Style, Selective Attention, and Perceptual-Motor Reaction 
Time, 4 Experimental Aging Res. 377 (1978); N. Munk, Finished at 40, 
139 Fortune 50 (1999)).
    \54\ See generally McCann & Giles, supra note 53, at 172 (citing 
J. A. Forteza & J. M Prieto, Aging and Work Behavior, in Handbook of 
Industrial and Organizational Psychology 447 (H. C. Triandis et al. 
eds., 2d ed. vol. 4, 1994); D. C. Park, Aging, Cognition, and Work, 
7 Hum. Performance 181 (1994); P. Warr, Age and Employment, in 
Handbook of Industrial and Organizational Psychology, supra, at 
485).
    \55\ McCann & Giles, supra note 53, at 173 (citing Commonwealth 
Fund, The Untapped Resource: Americans Over 55 at Work (1993)).
    \56\ McCann & Giles, supra note 53, at 173 (citing J. Eisenberg, 
Relationship Between Age and Effects Upon Work: A Study of Older 
Workers in the Garment Industry, Dissertation Abstracts Int'l 41 
(4A) (1980)).
    \57\ McCann & Giles, supra note 53, at 173 (citing W. H. Holley 
et al., Age and Reactions to Jobs: An Empirical study of 
Paraprofessional Workers, 1 Aging & Work 33 (1978)).
---------------------------------------------------------------------------

    For example, an employer seeking to hire individuals with 
technological skills could instruct decision makers on the particular 
skills (e.g., experience using specific software or developing certain 
types of programs) that it needs. Similarly, rather than simply asking 
managers to assess an employee's training potential, an employer could 
instruct managers to identify the times the employee has received or 
sought training. Using objective criteria as much as possible and 
providing decision makers with specific job-related information can 
help to overcome age-based stereotypes.\58\
---------------------------------------------------------------------------

    \58\ See Richard A. Posthuma & Michael A. Campion, Age 
Stereotypes in the Workplace: Common Stereotypes, Moderators, and 
Future Research Directions, 35 J. Mgmt. 158, 172 (2009) 
(availability and use of job-related information reduces the effects 
of age-based stereotypes).
---------------------------------------------------------------------------

    The rule does not require employers to train their managers. First, 
by referring not just to training but to ``guidance or training,'' it 
recognizes that employers use a wide range of measures to convey their 
expectations to managers, depending on the circumstances. For example, 
a small employer might reasonably rely entirely on brief, informal, 
verbal instruction. Second, as with all of the considerations in 
section 1625.7(e), this consideration is a not a required duty. 
Instead, its importance depends on the particular facts raised. Thus, 
an employer's RFOA defense will not necessarily fail because, for 
example, the employer did not train managers on how to apply its 
standard. On the other hand, steps such as carefully defining a 
standard and instructing managers on how to apply it are evidence that 
the employer's actions were based on reasonable factors other than age 
and will support the employer's defense.
    The Commission does not agree with the commenter's suggestion that 
preventive training measures should be a Faragher-type defense. 
Employers have a Faragher-type defense to harassment based on age.\59\ 
An employer's training measures do not constitute a defense to 
disparate treatment or disparate impact, but they should go a long way 
toward preventing conscious or unconscious bias from infecting decision 
making in the first

[[Page 19088]]

place. Although training is not a required element of the RFOA defense, 
it is a key component of efforts to provide a workplace free from 
discrimination. The Commission urges employers to educate all employees 
on their rights and responsibilities under all anti-discrimination 
laws.
---------------------------------------------------------------------------

    \59\ See, e.g., Weyers v. Lear Operations Corp., 359 F.3d 1049, 
1056 n.6 (8th Cir. 2004) (same analysis applies to hostile-
environment claims under ADEA and Title VII); Terry v. Ashcroft, 336 
F.3d 128, 148-50 (2d Cir. 2003) (same); EEOC Enforcement Guidance: 
Vicarious Employer Liability for Unlawful Harassment by Supervisors 
II (June 18, 1999) (Faragher vicarious-liability rule applies to 
unlawful harassment on all covered bases, including age).
---------------------------------------------------------------------------

Section 1625.7(e)(2)(iii)
    Paragraph 1625.7(b)(2) of the proposed rule noted that, in the 
typical disparate-impact case, an employer has used an objective, non-
age factor and the inquiry focuses on reasonableness. Relying on Watson 
v. Fort Worth Bank and Trust,\60\ however, it also said that employers 
are subject to liability under disparate-impact analysis for granting 
supervisors unchecked discretion to engage in subjective decision 
making because the unchecked discretion allows conscious or unconscious 
age-based stereotypes to infect the decision-making process and, as 
such, is not ``other than age.'' It listed three factors relevant to 
whether an employment practice was ``other than age'': the extent to 
which the employer gave supervisors unchecked discretion to assess 
employees subjectively, the extent to which supervisors evaluated 
employees based on factors known to be subject to age-based 
stereotypes, and the extent to which supervisors were given guidance or 
training.
---------------------------------------------------------------------------

    \60\ 487 U.S. 977 (1988).
---------------------------------------------------------------------------

    Three commenters supported the proposed rule's approach to 
subjective decision making. They noted that subjective decision making 
frequently disadvantages older workers and raises the risk of age-based 
disparate impact. Other commenters who addressed this issue opposed the 
approach and argued that subjective decision making is not inherently 
based on age. They asserted that the proposed rule conflicted with 
Meacham's statement that the RFOA defense assumes that a non-age factor 
is at work, misconstrued Watson, and conflated disparate impact and 
disparate treatment. Some commenters asked for more guidance on the 
meaning of ``unchecked discretion.''
    The preamble to the proposed rule noted that criteria such as 
flexibility, willingness to learn, and technological skills are 
particularly susceptible to age-based stereotyping. One commenter 
argued that it is appropriate for an employer to consider these 
qualities, which are relevant to today's workplace. Another commenter 
asserted that the factor was too broad and could encompass such 
criteria as `` `energy,' `flexibility,' `adaptability,' `long-term 
commitment to company,' `success driven,' `tolerance,' [and] 
`creativity.' '' The commenter argued that the factor would cause 
parties to focus on whether a criterion was subject to stereotypes 
rather than on whether an employer evaluated employees negatively 
because of age.
    The rule continues to recognize that giving supervisors unchecked 
discretion to engage in subjective decision making may result in 
disparate impact and that employers should take reasonable steps to 
ensure supervisors exercise their discretion in a manner that does not 
violate the ADEA. To prevent the misunderstanding reflected in the 
comments, however, the Commission has revised the rule. First, as noted 
above, the rule no longer addresses ``reasonable'' and ``other than 
age'' in separate paragraphs, but discusses ``reasonable factor other 
than age'' in a single paragraph. Second, the factors listed under 
``other than age'' in the NPRM have been integrated into 
1625.7(e)(2)(ii) and (e)(2)(iii). Section 1625.7(e)(2)(ii) addresses 
the extent to which the employer defined the employment criterion--such 
as a subjective factor--and provided supervisors with guidance on how 
to apply it. The Commission also has combined two ``other than age'' 
factors into a single consideration addressing subjective decision 
making and the use of criteria susceptible to age-based stereotypes. 
Section 1625.7(e)(2)(iii) makes clear that the extent to which the 
employer attempts to minimize subjectivity and avoid age-based 
stereotyping is relevant to whether or not it acted reasonably, 
particularly where the criteria are known to be subject to age-based 
stereotypes.
    The Commission disagrees with commenters' assertions that the 
proposed rule was inconsistent with the Supreme Court's decisions in 
Meacham and Watson and believes that the rule is consistent with those 
decisions. First, Meacham did not say that a practice is ``without 
respect to age'' in every impact case, but only that such is the case 
in the typical disparate-impact case.\61\ Second, although ``[i]t is 
true * * * that an employer's policy of leaving * * * decisions to the 
unchecked discretion of lower level supervisors should itself raise no 
inference of discriminatory conduct,'' \62\ this does not mean ``that 
the particular supervisors to whom this discretion is delegated always 
act without discriminatory intent.'' \63\ As the Supreme Court 
recognized in Watson, disparate-impact analysis may be the only way to 
combat ``the problem of subconscious stereotypes and prejudices'' that 
may affect subjective decision making.\64\ Thus, although employers may 
sometimes deem it necessary to use subjective criteria to assess 
employees, it is not reasonable to leave the supervisors' discretion 
unconstrained.
---------------------------------------------------------------------------

    \61\ 554 U.S. at 96.
    \62\ Watson, 487 U.S. at 990.
    \63\ Id.
    \64\ Id.
---------------------------------------------------------------------------

    Contrary to some commenters' assertions, the rule does not 
improperly conflate disparate-treatment and disparate-impact claims. It 
is not surprising, however, that disparate-treatment and disparate-
impact claims may overlap in the context of subjective decision making. 
As the Supreme Court has noted, ``the necessary premise of the 
disparate impact approach is that some employment practices, adopted 
without a deliberately discriminatory motive, may in operation be 
functionally equivalent to intentional discrimination.'' \65\ As noted 
above, the final rule's reference to a ``non-age factor'' reflects the 
language of the statutory RFOA defense and the Smith decision.\66\ It 
also reflects the Watson decision's endorsement of disparate-impact 
analysis to address the problem of stereotypes and prejudices that 
impede the elimination of employment discrimination.
---------------------------------------------------------------------------

    \65\ Id. at 987; see also id. at 998 (factors such as cost of 
alternative relevant to ``whether the challenged practice has 
operated as the functional equivalent of a pretext for 
discriminatory treatment''); accord Wards Cove Packing Co. v. 
Atonio, 490 U.S. 642, 660 (1989); Albemarle Paper Co., 422 U.S. at 
425.
    \66\ See 29 U.S.C. 623(f)(1); Smith, 544 U.S. at 239.
---------------------------------------------------------------------------

    The proposed rule used the term ``unchecked'' discretion, which was 
also used by the Court in Watson. Nevertheless, to address commenters' 
confusion about the term, we have eliminated it. The rule now refers to 
whether the employer ``limited supervisors' discretion.''
    One commenter, noting that the identification of a specific 
employment practice is part of a plaintiff's prima facie case, argued 
that the issue of subjective decision making is not relevant to the 
RFOA defense. As noted above, the final rule expressly states that the 
individual challenging the practice is responsible for isolating and 
identifying the specific employment practice causing the adverse 
impact. As courts have recognized, however, plaintiffs may challenge an 
overall decision-making process ``if the employer utilizes an 
`undisciplined system of subjective decision making.' '' \67\ If an 
individual establishes

[[Page 19089]]

that an employer's use of subjective decision making had an age-based 
disparate impact, then the burden shifts to the employer to prove that 
the practice is a reasonable factor other than age. The extent to which 
the employer limited supervisors' discretion in a manner that minimized 
the likelihood that age-based stereotypes would infect the process is 
one of a number of factors relevant to whether the employer's practice 
is a reasonable, non-age factor.
---------------------------------------------------------------------------

    \67\ Durante v. Qualcomm, Inc., 144 Fed. Appx. 603, 606 (9th 
Cir. 2005) (unpublished) (quoting Watson, 487 U.S. at 990); see also 
Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 139 (2d Cir. 
2006) (unaudited reliance on supervisors' subjective judgment of 
employees' flexibility and criticality constituted a specific 
employment practice), vacated on other grounds, 554 U.S. 84 (2008).
---------------------------------------------------------------------------

Sections 1625.7(e)(2)(iv) and (v)
    The proposed rule listed three factors that some commenters 
interpreted as imposing Title VII's business-necessity test on ADEA 
disparate-impact claims. One factor addressed the extent to which an 
employer assessed the impact of its practice on older workers, and 
another factor concerned the severity of harm to individuals in the 
protected age group and the extent to which the employer took steps to 
minimize the harm. The remaining factor looked at whether other options 
were available and the reasons the employer chose the option it did. 
Quoting the Smith statement that the RFOA inquiry does not require 
employers to adopt a less discriminatory alternative,\68\ a footnote 
explained that the factor did not mean that an employer must adopt a 
practice that has the least severe age-based impact. The footnote also 
quoted a Restatement of Torts (Second) comment concerning unreasonable 
risk.
---------------------------------------------------------------------------

    \68\ Smith, 544 U.S. at 243.
---------------------------------------------------------------------------

    Some commenters argued that the factors conflate the concepts of 
impact and reasonableness, which are analytically distinct. They 
asserted that the factors improperly impose an affirmative duty to 
monitor selection procedures for adverse impact, that employers will 
not have data to conduct mandated impact analyses because they do not 
collect and report statistics on the ages of employees and applicants, 
that conducting impact analyses would be too costly for small 
employers, and that the factors penalize employers that do not conduct 
analyses. In addition, noting that plaintiffs have the burden of 
establishing that an employment practice has a disparate impact, some 
commenters argued that the factors inappropriately place the burden of 
disproving impact on employers. They also argued that the factor 
concerning consideration of other options conflicts with the Smith 
statement. Some commenters noted that, under Title VII, plaintiffs, not 
employers, have the burden of identifying less discriminatory 
alternatives. One commenter who opposed the factor argued that, if the 
Commission retains the factor, it should refer to ``other known 
options'' because employers should not be expected to know all 
potential employment practices. The commenter also argued that the 
Smith and Restatement quotes in the footnote were contradictory. 
Another commenter expressed concern that an alternative designed to 
minimize a practice's age-based impact might have an adverse impact on 
another protected group.
    Two commenters supported the factor concerning consideration of 
other options. They noted that, as the Supreme Court stated in Watson, 
evidence that the employer ignored equally effective less 
discriminatory alternatives suggests that the challenged practice was 
the ``functional equivalent of a pretext for discriminatory 
treatment.'' \69\
---------------------------------------------------------------------------

    \69\ 487 U.S. at 998.
---------------------------------------------------------------------------

    In response to comments, and to emphasize that the rule reflects a 
standard that is less stringent than Title VII's business-necessity 
test, the Commission has revised the rule to make clear that none of 
the considerations is a required element of the RFOA defense. As noted 
above, the rule now refers to a non-exhaustive description of 
``relevant considerations'' and expressly states that no specific 
consideration need be present for a differentiation to be based on 
reasonable factors other than age. The importance of each consideration 
will necessarily vary according to the facts of each particular 
situation.
    The final rule retains the impact-assessment and harm 
considerations, which have been redesignated 1625.7(e)(2)(iv) and 
1625.7(e)(2)(v). The Commission has deleted the reference to ``took 
steps'' from 1625.7(e)(2)(iv) to make clear that the consideration 
focuses on the extent to which the employer actually assessed the 
impact rather than on the steps the employer took to do so. What an 
employer reasonably should do to assess impact depends on the facts of 
the particular situation. For example, an employer that assesses the 
race- and sex-based impact of an employment practice would appear to 
act unreasonably if it does not similarly assess the age-based impact. 
A small employer that does not generally conduct impact analyses on any 
basis, however, may well be able to show that its RIF decisions were 
reasonable even if it did not conduct a formal disparate-impact 
analysis during the RIF. Similarly, evidence that a policy was not the 
type normally subject to disparate-impact analysis would support an 
employer's argument that it should not reasonably be expected to 
conduct such analysis. Whether or not a formal disparate-impact 
analysis is done, if the impact is sufficiently large that the employer 
was or should have been aware of it, a failure to have taken reasonable 
steps to avoid or mitigate the impact is relevant to whether the 
employer's actions were based on reasonable factors other than age.
    For purposes of clarity, section 1625.7(e)(2)(v) now refers to the 
``degree'' rather than ``severity'' of the harm and the ``extent'' of 
injury. The final rule also changes the term ``minimize'' to ``reduce'' 
with respect to the assessment of the harm caused by different options 
to make clear that the rule does not require the adoption of the least 
discriminatory alternative.
    Consideration of the degree of harm on individuals is measured both 
in terms of the scope of the injury to the individual and the scope of 
the impact, i.e., the number of persons affected. Smith exemplifies 
negligible harm in terms of injury and impact. In Smith, the injury was 
relatively minor as the raises affecting older workers were actually 
higher in dollar terms, although lower in percentage terms.\70\ The 
number of older workers affected was also relatively small.
---------------------------------------------------------------------------

    \70\ Smith, 544 U.S. at 241-42.
---------------------------------------------------------------------------

    In contrast, the more severe the harm, the greater the care that 
ought to be exercised.\71\ The Meacham case exemplifies significant 
injury and impact from the loss of jobs affecting a ``startlingly 
skewed'' group of older workers.\72\ In light of such significant 
injury and impact, it would be reasonable for an employer to 
investigate the reasons for such results and attempt to reduce the 
impact as appropriate.
---------------------------------------------------------------------------

    \71\ Cf. Restatement (Second) of Torts, 298 cmt. b (1965) (``The 
greater the danger, the greater the care which must be 
exercised.'').
    \72\ Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 145 (2d 
Cir. 2006), vacated, 544 U.S. 84 (2008).
---------------------------------------------------------------------------

    The extent to which the employer took steps to reduce the harm to 
older workers in light of the burden of undertaking such steps is 
relevant to reasonableness. Whether an employer knew or reasonably 
should have known of measures that would reduce harm informs the 
reasonableness of the

[[Page 19090]]

employer's choices.\73\ Thus, the RFOA includes consideration of the 
availability of measures to reduce harm, and the extent to which the 
employer weighed the harm to older workers against both the costs and 
efficiencies of using other measures that will achieve the employer's 
stated business purpose.
---------------------------------------------------------------------------

    \73\ Cf. Restatement (Second) of Torts 292 cmt. c (1965) (``If 
the actor can advance or protect his interest as adequately by other 
conduct which involves less risk of harm to others, the risk 
contained in his conduct is clearly unreasonable.'').
---------------------------------------------------------------------------

    Given the relevance of the availability of measures to reduce harm 
contemplated by this consideration, the Commission has deleted the last 
factor concerning the availability of options. In addition, commenters 
misconstrued the consideration of options as requiring employers to 
search out every possible alternative and use the least discriminatory 
alternative, comparable to the Title VII's requirement, which the 
Supreme Court in Smith reasoned is not mandated by the RFOA 
defense.\74\
---------------------------------------------------------------------------

    \74\ 544 U.S. at 243.
---------------------------------------------------------------------------

    The Commission disagrees with commenters' views that Smith means 
that the consideration of alternative or equally effective practices is 
irrelevant. Smith stated that the RFOA does not impose Title VII's 
``requirement'' that the employer must adopt a less discriminatory 
alternative.\75\ This statement does not mean that options or 
alternatives are irrelevant to the determination of reasonableness. As 
previously explained, the availability of options is manifestly 
relevant to the issue of reasonableness.\76\ A chosen practice might 
not be reasonable if an employer knew of and ignored an equally 
effective option that would have had a significantly less severe impact 
on older workers. Whereas Title VII requires an employer to adopt an 
equally effective, even marginally less discriminatory alternative, an 
employer's choice not to use an alternative that only marginally 
reduces the impact might be reasonable under the ADEA.
---------------------------------------------------------------------------

    \75\ 42 U.S.C. 2000e-2(k)(1)(A)(ii), 2000e-2(k)(1)(C) (adopting 
pre-Wards Cove approach to ``alternative employment practice''). The 
RFOA standard does not require the employer to select the least 
discriminatory option. Smith, 544 U. S. at 243.
    \76\ In addition, the failure to adopt a less discriminatory 
alternative may be evidence of pretext under certain circumstances. 
Watson, 487 U.S. at 998; see also Wards Cove Packing Co. v. Atonio, 
490 U.S. 642, 660-61 (1989) (refusal to adopt less discriminatory 
alternative ``would belie a claim [that challenged] practices are 
being employed for nondiscriminatory reasons'').
---------------------------------------------------------------------------

    The changes to 1625.7(e) clarify that the RFOA standard is lower 
than Title VII's ``business necessity'' standard.\77\ They also clarify 
that the considerations relevant to the RFOA determination are not 
required elements of the RFOA defense. These changes ensure that 
employers may continue to make reasonable business decisions that do 
not arbitrarily limit the employment opportunities of older workers.
---------------------------------------------------------------------------

    \77\ 42 U.S.C. 2000e-2(k)(1)(A)(i).
---------------------------------------------------------------------------

Regulatory Procedures

Executive Orders 13563 and 12866

    This final rule has been drafted and reviewed in accordance with 
Executive Order (``E.O.'') 13563 and E.O. 12866. Executive Order 13563 
directs agencies to propose or adopt a regulation only upon a reasoned 
determination that its benefits justify its cost (recognizing that some 
benefits and costs are difficult to quantify); tailor its regulations 
to impose the least burden on society, consistent with obtaining 
regulatory objectives; and select, in choosing among alternative 
regulatory approaches, those approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). Executive 
Order 12866 directs agencies to submit a regulatory impact analysis for 
those regulatory actions that are ``economically significant'' within 
the meaning of section 3(f)(1).''\78\ A regulatory action is 
economically significant under section 3(f)(1) if it is anticipated (1) 
to ``[h]ave an annual effect on the economy of $100 million or more,'' 
or (2) to ``adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.'' \79\ Executive Order 13563 reaffirms the principles 
established by E.O. 12866, and further emphasizes the need to reduce 
regulatory burden to the extent feasible and permitted by law.\80\
---------------------------------------------------------------------------

    \78\ Executive Order 12866 refers to ``those matters identified 
as, or determined by the Administrator of OIRA to be, a significant 
regulatory action within the scope of section 3(f)(1).'' Id. The 
Office of Management & Budget states that ``Executive Order 12866 
requires agencies to conduct a regulatory analysis for economically 
significant regulatory actions as defined by Section 3(f)(1).'' 
Circular A-4 (Sept. 17, 2003), available at http://www.whitehouse.gov/omb/circulars_a004_a-4.
    \79\ Exec. Order No. 12866, 58 FR 51735 (Oct. 4, 1993), 
available at http://www.whitehouse.gov/sites/default/files/omb/inforeg/eo12866.pdf.
    \80\ Exec. Order No. 13563, 76 FR 3821 (Jan. 21, 2011).
---------------------------------------------------------------------------

    As reported in the February 2010 NPRM, the Commission determined 
that the rule is not economically significant under this standard, and 
therefore that a full regulatory impact analysis was not required. 
However, some comments received during the notice and comment period 
suggested, without specifically mentioning the Commission's 
determination under E.O. 12866, that the rule would impose greater 
costs on regulated entities than the Commission anticipated. To ensure 
that regulatory burdens are minimized, the Commission reexamined its 
basis for determining that the rule is not economically significant in 
light of the comments. It concluded that the determination did not need 
to be changed, and that the commenters' stated concerns about costs 
reflected a misunderstanding of the rule. The final rule has been 
revised to obviate such misunderstanding. For the record, the 
Commission presents its analysis of the impact of the rule on regulated 
entities and responds to the public comments below.
Analysis
    The purpose of the rule is to help explain the implications of the 
Supreme Court's decisions in Smith \81\ and Meacham \82\ and the type 
of conduct that would support an RFOA defense in court. It therefore 
does not require any action on the part of covered entities.\83\ 
Rather, it provides assistance to covered entities regarding what they 
can do to ensure that their practices are based on reasonable factors 
other than age. The rule does not expand the coverage of the ADEA to 
additional employers or employees. It also does not include reporting, 
recordkeeping, or other requirements for compliance. Accordingly, the 
Commission concluded that efforts to comply with the rule will not have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State or local tribal governments or communities.
---------------------------------------------------------------------------

    \81\ 544 U.S. 228 (2005).
    \82\ 554 U.S. 84 (2008).
    \83\ The ADEA applies to employers with 20 or more employees, 
labor organizations, employment agencies, and government entities. 
There are approximately 639,288 businesses with 20 or more 
employees. United States Small Bus. Ass'n, Employer Firms, 
Establishments, Employment, and Annual Payroll Small Firm Class 
Sizes, 2007, Table in Firm Data, http://archive.sba.gov/advo/research/us_07ss.pdf (last visited Feb. 15, 2012). There are 
approximately 17,000 employment agencies. Am. Staffing Ass'n., 
Staffing FAQs, http://www.americanstaffing.net/statistics/faqs.cfm 
(last visited Feb. 15, 2012).
---------------------------------------------------------------------------

    However, the Commission recognizes that some covered entities may 
choose to modify their business practices in light of the recent 
Supreme Court decisions reflected in the rule, and the provisions in 
the rule itself, to avoid disparate-impact liability. Therefore, in

[[Page 19091]]

addition to determining that the rule imposes no requirements that have 
an economic impact, the Commission investigated whether this type of 
voluntary, precautionary behavior would have a significant impact on 
the economy.
Cost of Disparate-Impact Analyses
    Because paragraph 1625.7(e)(2)(iv) of the rule states that ``[t]he 
extent to which the employer assessed the adverse impact of its 
employment practice on older workers'' is relevant to the RFOA defense, 
some covered entities may perform additional disparate-impact analyses 
in response to the rule. The first step of the Commission's inquiry was 
therefore to determine the economic consequences of performing 
additional analyses.
    The Commission does not anticipate that this final rule will 
motivate large numbers of employers to perform additional disparate-
impact analyses for the following reasons. First, the current 
regulation assumed that employers would routinely analyze job actions 
susceptible to disparate-impact claims for potential adverse effects on 
older workers, and many employers, especially larger ones, already do 
so. Some do so to reduce potential liability for ADEA claims; others 
simply wish to avoid disproportionately negative treatment of older 
workers.
    Second, few job actions would be subject to disparate-impact 
analysis.\84\ For example, voluntary terminations and individual 
terminations for cause generally will not be subject to disparate-
impact analysis. Third, even actions that involve practices amenable to 
disparate-impact analysis do not always require such analysis to ensure 
that a practice is reasonable. The rule states that, to demonstrate the 
RFOA defense, a covered entity needs to show only that it acted as 
would a prudent employer mindful of the requirements of the ADEA. In 
many cases, a prudent employer may reasonably decide that a formal 
disparate-impact analysis is unnecessary, for example because--
---------------------------------------------------------------------------

    \84\ While the Commission is not aware of data on the number of 
job actions performed per year that may give rise to a disparate-
impact claim, there is research on the number of disparate-impact 
cases filed in federal court under all of the employment 
discrimination laws. An analysis of 1,788 randomly selected 
employment discrimination cases filed in federal court, and reported 
between 1987-2003, showed that only 4% raised disparate-impact 
claims. Laura Beth Nielsen et al., Contesting Workplace 
Discrimination in Court: Characteristics and Outcomes of Federal 
Employment Discrimination Litigation 1987-2003 11 (2008), http://www.americanbarfoundation.org/uploads/cms/documents/nielsen_abf_edl_report_08_final.pdf. ADEA disparate-impact claims are only a 
subset of this 4%, as ADEA cases only comprised 20% of the total 
number of cases studied. Id. at 9.

--The number of affected employees is relatively small, making impact 
readily ascertainable without formal analysis; or
--The employer has reason to believe that the practice will not 
negatively impact older workers, and no employees or applicants have 
alleged that it would have such impact.

    Further, where the covered entity determines that a disparate-
impact analysis is warranted, the associated costs will generally be 
minimal. Larger businesses already routinely employ sophisticated 
methods of detecting disparate impact on the basis of race, ethnicity, 
or gender, and therefore already possess the expertise and resources 
required to analyze age data for impact. Because performing an 
additional analysis using these pre-existing resources takes little 
time, the associated costs will be minimal.
    Although smaller entities may be less familiar with disparate-
impact analysis, such entities are even less likely to incur costs for 
performing formal analyses, for two reasons. First, the average small 
entity's involuntary termination or other selection decisions will most 
often involve such a small number of employees that impact will be 
readily ascertainable without formal analysis. Second, where the 
numbers are large enough to warrant a more formal analysis, the RFOA 
defense only requires an entity to take steps that are reasonable under 
the circumstances to uncover potential impact. A small entity without 
many resources will likely be able to show that it acted reasonably by 
using the same methods it uses to detect disparate impact on the basis 
of race, ethnicity, or gender, which can often be carried out using 
free, readily available Internet tools. By conducting a Web search for 
the term ``online disparate-impact analysis calculator,'' a small 
entity may find and use an online calculator that can be easily used by 
lay people. This tool would enable the entity to test for adverse 
impact in less than 10 minutes. Additional steps to evaluate adverse 
impact would be reasonable only if, in light of the circumstances and 
available resources, a prudent employer mindful of ADEA requirements 
would take such steps.
    Moreover, if a small entity determines that it requires assistance 
to perform these or other efforts to prevent age discrimination in 
employment, it may rely on free outreach materials from the Commission. 
The Commission expects to issue free small-business-oriented guidance 
materials discussing this rule, including technical assistance 
specifically designed to instruct small entities how to perform 
disparate-impact analyses and interpret the results.
Cost of Taking Steps To Reduce Harm
    Paragraph 1625.7(e)(2)(v) states that ``[t]he degree of the harm 
[to older workers], in terms of both the extent of injury and the 
numbers of persons adversely affected, and the extent to which the 
employer took steps to reduce the harm, in light of the burden of 
undertaking such steps'' is relevant to the RFOA determination.
    Steps to reduce harm to older individuals only become relevant to 
the RFOA defense where the employer knew or reasonably should have 
known of measures to reduce such harm while effectively achieving its 
stated business purpose. Again, the Commission's analysis is limited by 
the paucity of data that currently exist. However, because so few job 
actions involve neutral employment practices that disproportionately 
harm older workers,\85\ only a small percentage of employer decisions 
will even present the opportunity for employers to consider steps to 
reduce harm to older individuals. Of these cases, only a subset will be 
ones in which the employer knew or reasonably should have known of 
measures to reduce such harm while effectively achieving its stated 
business purpose. Thus, such considerations will be relevant only in a 
very small percentage of cases. Further, as stated expressly in the 
consideration, the determination whether steps are relevant to the RFOA 
defense is made in light of the burdens associated with such steps. 
Therefore, a business would not be required to take steps that were 
overly burdensome.
---------------------------------------------------------------------------

    \85\ As previously noted, the percentage of federal employment 
discrimination cases raising disparate-impact claims is 
approximately 4%. Id. at 11. A review of the ADEA disparate-impact 
cases available on Westlaw reveals that approximately 70% failed to 
reach the RFOA issue altogether, because the Plaintiff could not 
establish impact, leaving only 1.2% of cases.
---------------------------------------------------------------------------

Cost of Instruction and Guidance
    Paragraph 1625.7(e)(2)(ii) states that ``[t]he extent to which the 
employer defined the factor accurately and applied the factor fairly 
and accurately, including the extent to which managers and supervisors 
were given guidance or training about how to apply the factor and avoid 
discrimination'' is relevant to the RFOA determination. Paragraph 
1625.7(e)(2)(iii) states that ``[t]he extent to which the employer 
limited supervisors' discretion to assess

[[Page 19092]]

employees subjectively, particularly where the criteria that the 
supervisors were asked to evaluate are known to be subject to negative 
age-based stereotypes'' is relevant. Therefore, the rule may motivate 
some employers to provide additional instruction, guidance, and 
training to their supervisors.
    In many cases, no instruction will be required to avoid age 
discrimination. As noted, voluntary resignations do not raise a 
question of disparate impact. Even where the employment action involves 
application of selection or termination criteria, instruction will not 
always be needed. For example, instruction to avoid age-based 
stereotyping will be unnecessary if the selection criteria are 
objective.
    Where instruction is needed, the associated costs will generally be 
de minimis. Larger employers will not incur significant costs because 
they already provide regular training for supervisors, including 
regular EEO training. Any instructions necessary to avoid age-biased 
applications of selection or termination criteria may easily be 
incorporated into this regular training.
    Smaller businesses are even less likely to incur additional 
training costs. Because of the small number of people involved, many 
layoff decisions made by small entities are relatively straightforward, 
making instruction unnecessary to avoid age-biased applications of 
employment criteria. Further, even where some instruction is 
appropriate, entities small in size can typically provide such 
instruction informally, thereby avoiding costs associated with formal 
training. In addition, a small business wanting help with its training, 
or with other efforts to reduce adverse impact on older workers, may 
rely on the Commission's assistance. Each year, the Commission performs 
a very large number of free outreach presentations for employers, human 
resource managers, and their counsel, as well as fee-based training 
sessions offered at approximately $350. In fiscal year 2009 alone, the 
Commission offered 1,889 no-cost outreach events that addressed ADEA 
compliance, reaching more than 127,000 people, many of whom were from 
small businesses, and offered approximately 300 fee-based private-
sector trainings that reached more than 13,000 people. In addition, the 
Commission expects to issue small-business-oriented guidance materials 
discussing the rule, as it has done in other contexts.\86\
---------------------------------------------------------------------------

    \86\ See, e.g., Equal Employment Opportunity Comm'n, The ADA: A 
Primer for Small Business, http://www.eeoc.gov/ada/adahandbook.html.
---------------------------------------------------------------------------

Benefits of the Rule
    Under E.O. 13563, the Commission must assess not only the rule's 
negative effects on the economy but also its positive effects. Here 
again, the Commission's assessment was necessarily limited by the data 
that currently exist. Indeed, doing this assessment highlights the need 
for more focused research on the economic costs and benefits of 
ensuring equal employment opportunity. Nevertheless, on the basis of 
the general considerations below, the Commission determined that the 
rule will have modest positive effects on the economy.

--Providing additional instruction about how to implement employment 
practices in a manner that is free from age bias carries the benefit of 
obtaining more accurate employee evaluations. As stated in the section-
by section analysis above, research demonstrates that negative age-
based stereotypes are not only harmful to older individuals but also 
inaccurate--a large number of empirical studies and research reviews 
indicate that there is a nonexistent or slightly positive relationship 
between job performance and older age.\87\ These data suggest that 
taking measures to eliminate age bias in selection and termination can 
actually improve the employer's bottom line.
---------------------------------------------------------------------------

    \87\ See supra notes 53-57.
---------------------------------------------------------------------------

--Data show that older individuals who become unemployed have more 
difficulty finding a new position and tend to stay unemployed longer 
than younger individuals.\88\ To the extent that the difficulty in 
finding new work is attributable to neutral practices that act as 
barriers to the employment of older workers, the regulation should help 
to reduce the rate of their unemployment and, thus, help to reduce 
these unique burdens on society. This effort is likely to become 
increasingly important as the Baby Boom Generation grows older, raising 
the number of older individuals in the workforce.\89\
---------------------------------------------------------------------------

    \88\ See Impact of Economy on Older Workers: Meeting of the 
Equal Employment Opportunity Comm'n (2010) (written testimony of 
William E. Spriggs, Ph.D.), available at http://www.eeoc.gov/eeoc/meetings/11-17-10/spriggs.cfm (citing Bureau of Lab. Statistics, 
Unemployed Persons by Age, Sex, Race, Hispanic or Latino Ethnicity, 
Marital Status, and Duration of Unemployment, http://www.bls.gov/web/empsit/cpseea36.pdf (last visited Mar. 12, 2011); Bureau of Lab. 
Statistics, Displaced Workers Summary (Aug. 26, 2010, 10 a.m.), 
http://www.bls.gov/news.release/disp.nr0.htm).
    \89\ Id. (citing Bureau of Lab. Statistics, Employment 
Projections (Dec. 10, 2009, 10 a.m.), http://www.bls.gov/news.release/ecopro.nr0.htm (reporting that the number of persons in 
the labor force age 55 years and older is expected to increase by 43 
percent by 2018).
---------------------------------------------------------------------------

--Encouraging employers to avoid practices that adversely affect older 
workers will reduce employers' litigation costs. In a disparate-impact 
case, the plaintiff has the initial burden of demonstrating that the 
challenged practice has a disproportionately negative effect on the 
protected group. If an employer less frequently uses practices that 
have a disproportionately negative effect on older workers, older 
individuals will less frequently have reason to allege discrimination.
--The rule will also reduce employers' litigation costs by eliminating 
the considerable uncertainty left after the Supreme Court's decisions 
in Smith \90\ and Meacham.\91\ Although the Court clearly held that 
employers asserting the RFOA defense do not need to demonstrate that 
the practice is a business necessity, as required by the current 
regulations,\92\ it did not provide guidance on the application of the 
RFOA standard. Because employers bear the burden of proving that their 
actions were based on reasonable factors other than age, they will 
benefit from a greater ability to assess their own liability as a 
result of the rule, and therefore to avoid litigation.

    \90\ 544 U.S. 228 (2005).
    \91\ 554 U.S. 84 (2008).
    \92\ See 29 CFR 1625.7(d), 46 FR 47724 (Sept. 29, 1981) (amended 
herein) (``When an employment practice, including a test, is claimed 
as a basis for different treatment of employees or applicants for 
employment on the grounds that it is a `factor other than' age, and 
such practice has an adverse impact on individuals within the 
protected age group, it can only be justified as a business 
necessity.'').

    The Commission also concludes that a wide range of qualitative, 
dignitary, and related intrinsic benefits must be considered. These 
benefits include the values identified in E.O. 13563, such as equity, 
human dignity, and fairness. Specifically, the qualitative benefits 
attributable to the final rule include but are not limited to the 
---------------------------------------------------------------------------
following:

--Reducing discrimination against older individuals promotes human 
dignity and self-respect, and diminishes feelings of exclusion and 
humiliation.
--Reducing discrimination against older individuals also yields third-
party benefits such as a reduction in the prevalence of age-based 
stereotypes and associated stigma.

[[Page 19093]]

--Increased participation in the workforce by older individuals 
benefits both employers and coworkers in ways that may not be subject 
to monetary quantification, including increasing diversity, 
understanding, and fairness in the workplace.
--Reducing discrimination against older individuals benefits workers in 
general and society at large by creating less discriminatory work 
environments.
Public Comments
    The comments suggesting that the rule will impose economic burdens 
were as follows:

--Six commenters stated that the rule would require employers to 
monitor or analyze employment decisions for adverse impact on older 
workers. One of these commenters stated more specifically that the rule 
would require employers to compare the impact of each practice on 
employees of every age with its impact on employees of every other age. 
Another commenter thought that disparate-impact analysis would require 
employers to collect age information about its applicants and 
employees.
--Four commenters asserted that the rule would require employers to 
search for and evaluate alternative means of achieving their business 
goals. One stated more specifically that the number of alternatives 
that employers must evaluate under the rule is ``potentially 
infinite.''
--One commenter asserted that the rule imposed a duty on employers to 
provide training, instruction, or guidance to its supervisors. Other 
commenters asserted that the rule required employers to provide 
training to supervisors in order to limit the discretion that they 
exercise when assessing employees subjectively, particularly with 
respect to factors known to be susceptible to age-based 
stereotypes.\93\
---------------------------------------------------------------------------

    \93\ Some commenters interpreted the February 2010 NPRM as 
asserting that employers should not assess employee qualities such 
as flexibility, willingness to learn, and technological skills 
(qualities that are often assessed subjectively). These commenters 
objected that the rule would deprive employers of their ability to 
seek out employees with these qualities, which are valuable in the 
workplace. The Commission does not assert that employers should not 
seek out employees with these qualities, or that they are not 
valuable. It does maintain, however, that if employers assess 
qualities such as flexibility, willingness to learn, and 
technological skills, they should take reasonable steps to ensure 
that the assessments are accurate and not influenced by common age-
based stereotypes. Such steps may include providing an objective 
means of assessing the desired quality and instructing managers how 
to be fair in their evaluations.
---------------------------------------------------------------------------

--One commenter stated that the rule would require employers to hire 
consultants to determine whether their practices are ``common business 
practices.''
--One commenter asserted that the rule would make it much harder for 
employers to win even the most frivolous of age discrimination claims 
at the summary judgment stage. The same commenter asserted that the 
rule would require litigants to engage in extensive discovery to 
determine whether each of the listed factors had been met, including 
whether the employer considered alternatives and whether it took steps 
to minimize harm to older workers.
Commission Response
    The comments do not alter the Commission's conclusion that the rule 
will not impose unacceptable or unreasonable costs on society. As 
previously noted, the comments were based on a misunderstanding of the 
proposed rule, and the final rule was revised to obviate such 
misapprehension. As shown above, any costs associated with the rule 
will be minimal.
Response to Comments Regarding the Cost of Disparate-Impact Analyses
    The comments overstate the number of disparate-impact analyses that 
will be performed by employers as a result of the rule. As explained 
above, a disparate-impact analysis is appropriate in only a small 
proportion of job actions, is already done by many employers pursuant 
to existing regulations and case law, and, even where the practice is 
amenable to disparate-impact analysis, such analysis is not always 
required to ensure that a practice is reasonable. If an impact analyses 
is done, neither existing law nor this regulation would require it to 
compare the practice's impact on individuals of every age with its 
impact on individuals of every other age. The RFOA defense requires 
only such steps as would be taken by a prudent employer mindful of the 
requirements of the ADEA.
    The Commission disagrees with the assertion of one commenter that 
obtaining the required age data would be burdensome. Generally, 
employees' birth dates are available to employers because they are 
recorded in personnel files.
Response to Comments Regarding the Cost of Evaluating Alternatives
    As explained above, the Commission has deleted the factor 
discussing the availability of other ways for the employer to achieve 
its stated business purpose, because commenters misunderstood the 
factor to mean that employers must search out every possible 
alternative (or, in the words of one commenter, a ``potentially 
infinite'' number of alternatives) and use the one that is least 
discriminatory. Of course, as also explained above, the deletion of the 
factor does not mean that the availability of other measures to achieve 
the employer's purposes is irrelevant to the defense. Whether an 
employer knew or reasonably should have known of measures that would 
reduce harm informs the reasonableness of the employer's choices.
    Because so few job actions involve neutral employment practices 
that disproportionately harm older workers, only a small percentage of 
employer decisions will even present the opportunity for employers to 
consider the relative harm of various options.\94\ Only a subset of 
these actions will be ones in which the employer knew or reasonably 
should have known of measures that would reduce harm to older 
individuals. Further, when an employer does decide to evaluate whether 
another option would reduce harm to older individuals, it may do so 
using the same low-cost methods that were described above in the 
discussion of the cost of disparate-impact analyses. Overall costs are 
therefore likely to be extremely low.
---------------------------------------------------------------------------

    \94\ See supra note 87.
---------------------------------------------------------------------------

Response to Comments Regarding the Cost of Instruction and Guidance
    The comments assert generally that the additional training will be 
burdensome. As explained in the analysis above, training costs 
associated with the rule will be minimal.
Response to Comments Regarding the Cost of Determining Whether a 
Business Practice Is Common
    The Commission has deleted the factor concerning whether a business 
practice is common from the considerations. Therefore, the Commission 
need not discuss the commenter's assertion that this factor requires 
businesses to hire consultants to determine whether their practices are 
common.
Response to Comments Regarding the Cost of Frivolous Litigation
    The Commission disagrees with one commenter's assertion that the 
rule would increase employers' vulnerability to frivolous litigation or 
make it more difficult for employers to win against frivolous claims at 
the summary

[[Page 19094]]

judgment stage. Of course, individuals may file frivolous litigation 
regardless of the underlying law. Further, even without the rule, 
determining whether a practice is a based on reasonable factors other 
than age is a fact-specific inquiry; the commenter provided no reason 
to conclude that the considerations in the final rule are any more 
complicated than other facts relevant to the RFOA analysis. Indeed, as 
noted, the Commission concludes the rule is likely to reduce employers' 
litigation costs.
Conclusion
    For the foregoing reasons, the Commission has determined that the 
final rule will not have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State or local tribal 
governments or communities.

Regulatory Flexibility Act

    The purpose of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-
612, is to ensure that statutory goals are achieved without imposing 
unnecessary and unjustifiable regulatory burdens on small businesses 
and other small entities, which may have few resources to devote to 
regulatory compliance. To achieve this purpose, the RFA requires 
federal agencies to conduct a series of analyses on proposed rules. The 
analyses are designed to ensure that the agency considers ways of 
minimizing any significant regulatory burdens imposed on small entities 
by the rules.
    The goal of the analysis is to determine whether the proposed rule 
will have a significant economic impact on a substantial number of 
small entities. If it will, the agency must consider alternative 
regulatory approaches that may minimize the impact. If the rule will 
not have a significant impact on a substantial number of small 
entities, it may so certify under 5 U.S.C. 605(b).
    In the February 2010 NPRM, the Commission certified under 5 U.S.C. 
605(b) that the proposed rule would not have a significant economic 
impact on a substantial number of small entities, and therefore did not 
include an initial regulatory flexibility analysis. Although the final 
rule covers a substantial number of small entities,\95\ the 
Commission's threshold analysis indicated that, for the reasons 
discussed in detail in the section on Executive Order 12866 above, the 
costs imposed by the rule generally are de minimis and therefore would 
not significantly impact small business.
---------------------------------------------------------------------------

    \95\ The rule covers all employers with at least 20 employees, 
labor organizations, employment agencies, and state and local 
governments. According to 2007-based statistics from the Small 
Business Administration, there were 620,977 businesses with 20 or 
more employees and fewer than 500 employees. United States Small 
Bus. Ass'n, Employer Firms, Establishments, Employment, and Annual 
Payroll Small Firm Class Sizes, 2007, Table in Firm Data, http://archive.sba.gov/advo/research/us_07ss.pdf (last visited Jan. 22, 
2011).
---------------------------------------------------------------------------

Public Comments
    Two commenters disagreed with the Commission's decision to certify 
the rule, and therefore requested further analysis under the RFA. One 
of these commenters asserted that the rule would economically impact 
small entities by suggesting that they keep track of alternative 
employment practices and the reasons for their choices, and that they 
give supervisors additional guidance and training. In light of these 
comments and the comments discussed above regarding E.O. 12866, the 
Commission reexamined the factual basis for its certification.
Commission Response
    The comments provide no reason to alter the Commission's initial 
conclusion that the rule will not impose unnecessary or unjustifiable 
regulatory burdens on small entities. The comments did not include any 
factual basis for their assertions and, for reasons specifically 
discussed in the E.O. 12866 analysis above, the Commission has 
determined that small entities are unlikely to incur costs as a result 
of this rule.
    As explained above, the rule will seldom be implicated in actions 
by small employers because issues of age-based disparate impact are 
most likely to arise in the context of mass terminations, hiring based 
on tests, or other practices involving significant numbers of 
individuals. Although there are no data available that speak 
specifically to this issue, the Commission estimates that the average 
small entity is unlikely to be involved in even one such practice. If a 
small employer were to engage in such a practice, moreover, the number 
of individuals affected is likely to be so small that impact can be 
ascertained without resort to formal disparate-impact analysis. If the 
employer wants to do such analysis, free and easy to use tools are 
available on the Internet. Therefore, the Commission disagrees with the 
commenter that small entities will be significantly burdened by 
additional impact analyses performed as a result of the rule.
    The Commission also disagrees that small entities will be 
significantly burdened by the need to keep track of alternative 
employment practices and the reasons for their choices. As explained 
above, consideration of alternative employment practices would be 
relevant only in a very small percentage of cases.\96\ Further, if a 
small employer undertook a neutral practice that disproportionately 
harmed older workers, the determination of the reasonableness of the 
factor it used would be made in light of its resources. The entity's 
resources also inform the determination of whether it would be 
reasonable for it to take, or not to take, further steps to reduce 
harm. Therefore, small employers will not be disproportionately 
burdened by this aspect of the rule.
---------------------------------------------------------------------------

    \96\ See supra note 94, and the accompanying text.
---------------------------------------------------------------------------

    For the reasons explained above, the Commission disagrees with the 
commenter's assertion that small entities will be significantly 
burdened by additional guidance and training performed as a result of 
the rule. Indeed, the rule is likely to have little impact on small 
employers.
Conclusion
    For the foregoing reasons, the Commission certifies pursuant to 
section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that 
this rule will not have a significant economic impact on a substantial 
number of small entities.

Paperwork Reduction Act

    This final rule contains no new or revised information collection 
requirements subject to review by the Office of Management and Budget 
under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Unfunded Mandates Reform Act of 1995

    This final rule will not result in the expenditure by state, local, 
or tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Congressional Review Act

    To the extent that this rule is subject to the Congressional Review 
Act, the Commission has complied with its requirements by submitting 
this final rule to Congress prior to publication in the Federal 
Register.

[[Page 19095]]

List of Subjects in 29 CFR Part 1625

    Advertising, Age, Employee benefit plans, Equal employment 
opportunity, Retirement.

    Dated: March 7, 2012.

    For the Commission.
Jacqueline A. Berrien,
Chair.
    For the reasons set forth in the preamble, the Equal Employment 
Opportunity Commission 29 CFR chapter XIV part 1625 is amended as 
follows:

PART 1625--AGE DISCRIMINATION IN EMPLOYMENT ACT

0
1. The authority citation for part 1625 continues to read as follows:

    Authority:  81 Stat. 602; 29 U.S.C. 621; 5 U.S.C. 301; 
Secretary's Order No. 10-68; Secretary's Order No. 11-68; Sec. 9, 81 
Stat. 605; 29 U.S.C. 628; sec. 12, 29 U.S.C. 631, Pub. L. 99-592, 
100 Stat. 3342; sec. 2, Reorg. Plan No. 1 of 1978, 43 FR 19807.

Subpart A--Interpretations

0
2. In Sec.  1625.7, revise paragraphs (b) through (e) to read as 
follows:


Sec.  1625.7  Differentiations based on reasonable factors other than 
age (RFOA).

* * * * *
    (b) When an employment practice uses age as a limiting criterion, 
the defense that the practice is justified by a reasonable factor other 
than age is unavailable.
    (c) Any employment practice that adversely affects individuals 
within the protected age group on the basis of older age is 
discriminatory unless the practice is justified by a ``reasonable 
factor other than age.'' An individual challenging the allegedly 
unlawful practice is responsible for isolating and identifying the 
specific employment practice that allegedly causes any observed 
statistical disparities.
    (d) Whenever the ``reasonable factors other than age'' defense is 
raised, the employer bears the burdens of production and persuasion to 
demonstrate the defense. The ``reasonable factors other than age'' 
provision is not available as a defense to a claim of disparate 
treatment.
    (e)(1) 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. Whether a differentiation is based on reasonable factors 
other than age must be decided on the basis of all the particular facts 
and circumstances surrounding each individual situation. 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.
    (2) Considerations that are relevant to whether a practice is based 
on a reasonable factor other than age include, but are not limited to:
    (i) The extent to which the factor is related to the employer's 
stated business purpose;
    (ii) The extent to which the employer defined the factor accurately 
and applied the factor fairly and accurately, including the extent to 
which managers and supervisors were given guidance or training about 
how to apply the factor and avoid discrimination;
    (iii) The extent to which the employer limited supervisors' 
discretion to assess employees subjectively, particularly where the 
criteria that the supervisors were asked to evaluate are known to be 
subject to negative age-based stereotypes;
    (iv) The extent to which the employer assessed the adverse impact 
of its employment practice on older workers; and
    (v) The degree of the harm to individuals within the protected age 
group, in terms of both the extent of injury and the numbers of persons 
adversely affected, and the extent to which the employer took steps to 
reduce the harm, in light of the burden of undertaking such steps.
    (3) No specific consideration or combination of considerations need 
be present for a differentiation to be based on reasonable factors 
other than age. Nor does the presence of one of these considerations 
automatically establish the defense.
* * * * *
[FR Doc. 2012-5896 Filed 3-29-12; 8:45 am]
BILLING CODE 6570-01-P