C.F.R. » Title 29 » CHAPTER XIV—EQUAL EMPLOYMENT OPPORTUNITY COMMISSION › PART 1625—AGE DISCRIMINATION IN EMPLOYMENT ACT › Subpart A—Interpretations

29 C.F.R. § 1625.7

Differentiations based on reasonable factors other than age

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(a) Section 4(f)(1) of the Act provides that

* * * it shall not be unlawful for an employer, employment agency, or labor organization * * * to take any action otherwise prohibited under paragraphs (a), (b), (c), or (e) of this section * * * where the differentiation is based on reasonable factors other than age * * *.

(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.

(f) A differentiation based on the average cost of employing older employees as a group is unlawful except with respect to employee benefit plans which qualify for the section 4(f)(2) exception to the Act.

[46 FR 47726, Sept. 29, 1981, as amended at 77 FR 19095, Mar. 30, 2012]
Notes of Decisions
Cited in 45 cases (2 in the last 5 years), 1983–2021 · leading case: Smith v. City of Jackson, 544 U.S. 228 (2005).
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Smith v. City of Jackson, 544 U.S. 228 (2005). · cites it 16× “" 29 CFR § 1625.7 (d) (2004). The statement of the EEOC which accompanied publication of the agency's final interpretation of the ADEA said the following regarding this regulation: "Paragraph (d) of § 1625.”
Meacham v. Knolls Atomic Power Lab'y, 554 U.S. 84 (2008). · cites it 12× “See Brief for United States as Amicus Curiae 16, n.”
Richard M. Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016). · cites it 5× “” 29 C.F.R. § 1625.7 (d) (2004). 8 Judge Rosenbaum’s concurrence points out that the Smith plurality recognized that the difference in the text of the ADEA and Title VII could warrant treating disparate impact claims under the two statutes differently.”
Richard M. Villarreal v. R.J. Reynolds Tobacco Co., 806 F.3d 1288 (11th Cir. 2015). · cites it 28× “’” 29 C.F.R. § 1625.7 (c). The regulation extends disparate impact liability to all “individuals within the protected age group.”
Timothy O'Brien v. Caterpillar Inc., 900 F.3d 923 (7th Cir. 2018). · cites it 2× “To prevail Caterpillar must show that its less favorable treatment of retirement-eligible employees was "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…”
David Enlow v. Salem-Keizer Yellow Cab Co., Inc., an Oregon Corp., 389 F.3d 802 (9th Cir. 2004). · cites it 2× “” 29 C.F.R. § 1625.7 (c). The EEOC regulations also provide that a “differentiation based on the average cost of employing older [workers] .”
Rudolph Karlo v. Pittsburgh Glass Works LLC, 849 F.3d 61 (3rd Cir. 2017). “§ 623 (f)(1); 29 C.F.R. § 1625.7 . “[T]he scope of disparate-impact liability under the ADEA is narrower than under Title VII” because of “[t]wo textual differences” between the statutes.”
Equal Emp. Opportunity Comm'n, Plaintiff-appellant, v. Clay Printing Co., Defendant-appellee, 955 F.2d 936 (4th Cir. 1992). · cites it 2× “2 For purposes of summary judgment, it does not require a great leap of imagination to infer from the record in this case that the decisions to terminate the five discharge claimants — Gary Houk, Roosevelt Whittington, Richard Bowman, Robert Herman, and Edna Brown — were based…”
Equal Emp. Opportunity Comm'n v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir. 1996). · cites it 2× “The relevant EEOC regulation interpreting the RFOA provision, 29 C.F.R. § 1625.7 (c), states that “[w]hen 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.”
Dayton v. Oakton Cmty. Coll., 907 F.3d 460 (7th Cir. 2018). · cites it 2× “at 931 (quoting 29 C.F.R. § 1625.7 (e)(1) ). When courts assess whether an RFOA exists, they need not consider whether there existed alternative ways the employer could have achieved its goals without causing a disparate impact on a protected class.”
Smith v. City of Jackson MS, 351 F.3d 183 (5th Cir. 2003). “At around the same time, the EEOC issued new interpretive guidelines for the conduct of ADEA cases. We note that one portion of those guidelines seems to be based on the assumption that the Griggs framework applies to ADEA cases.”
Lorraine Scamman v. Shaw's Supermarkets, Inc., 2017 ME 41 (Me. 2017). “1536 ; 29 C.F.R. § 1625.7 (2016). The United States Supreme Court has made clear that the existence of the RFOA defense in the ADEA means that “the scope of disparate-impact liability under [the] ADEA is narrower than under Title VII.”
Show all 45 citing cases →
— 29 C.F.R. § 1625.7(c) — 1 case
Raymond v. Spirit AeroSystems Holdings, Inc. (D. Kan. 2019).
— 29 C.F.R. § 1625.7(d) — 2 cases
Meacham v. Knolls Atomic Power Lab'y, 461 F.3d 134 (2d Cir. 2006).
Meacham v. Knolls Atomic Power Lab'y, 461 F.3d 134 (2d Cir. 2006).
— 29 C.F.R. § 1625.7(e) — 2 cases
Meacham v. Knolls Atomic Power Lab'y, 461 F.3d 134 (2d Cir. 2006).
Meacham v. Knolls Atomic Power Lab'y, 461 F.3d 134 (2d Cir. 2006).
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