The Equal Employment Opportunity Commission (EEOC) will hold a public meeting next week to consider draft final regulations on disparate impact and reasonable factors other than age (RFOA) under the Age Discrimination in Employment Act (ADEA), and employment barriers that face disabled veterans. The meeting will take place next Wednesday, November 16, 2011, at 8:30 a.m. ET in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507.
According to the agency’s semiannual regulatory agenda, the EEOC intended to issue a final rule clarifying the meaning of the RFOA defense used against an ADEA claim and the disparate impact burden of proof under the ADEA by October 2011. In Smith v. City of Jackson, the U.S. Supreme Court held that disparate impact claims are cognizable under the ADEA, and that an employer could use RFOA as a defense against such a claim. To that end, in March 2008, the EEOC issued a notice of proposed rulemaking (NPRM) regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed to address the meaning of RFOA in this context. In light of the 2008 U.S. Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, and comments it received from its NPRM, the EEOC issued a new NPRM in February 2010 to address the scope of the RFOA defense. It is unclear whether the agency plans to vote on and issue the final rule to coincide with the meeting, or whether the hearing will focus on a draft version.
Another listed topic for discussion is “overcoming barriers to the employment of veterans with disabilities.” Although a detailed meeting agenda is not yet available, this portion of the event will likely involve a panel discussion.
As seating for the meeting is limited, the agency suggests arriving at least 30 minutes in advance.