EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADEA: Disparate Impact & RFOA in the Federal Sector

October 6, 2010

[ADDRESS]

Dear ____,

This letter responds to your questions concerning the application of disparate impact liability and the “reasonable factors other than age” defense to Age Discrimination in Employment Act of 1967 (ADEA) claims against the federal government under 29 U.S.C. § 633a. As you are aware, 29 U.S.C. § 633a(a) requires that in the federal government “all personnel actions affecting employees or applicants for employment who are at least 40 years old . . . shall be made free from any discrimination based on age.” This prohibition is separate from the ADEA provision that the Supreme Court relied upon to find disparate impact liability against private sector employers. See Smith v. City of Jackson, 544 U.S. 228 (2005) (interpreting private sector prohibition in § 623(a)(2) as including disparate impact, but also finding that the “reasonable factors other than age” defense applied to such claims).

In its administrative decisions involving claims of discrimination against federal government agencies, the EEOC has long held that disparate impact claims are available under § 633a, see, e.g., Carpenter v. Peters, EEOC Appeal Nos. 0120065151, et al. (Sept. 20, 2005) (reversing agency dismissal where complainants adequately alleged disparate impact under the ADEA); Witkowsky v. Department of the Interior, EEOC Petition No. 03970122 (Jan. 30, 1998) (finding no disparate impact where the complainant failed to identify an alternative practice that would accomplish a similar result with less impact on older workers). The Commission’s position is consistent with the Supreme Court’s broad reading of § 633a(a) in another context. See Gomez-Perez v. Potter, 553 U.S. 474, 487 (2008) (inferring a cause of action for retaliation in the federal sector and describing § 633a as a “broad prohibition of ‘discrimination,’ rather than a list of specific prohibited practices.”).

The Commission has not yet had occasion to address your second question – whether the “non-incorporation” provision of § 29 U.S.C. § 633a(f) prevents the application of the reasonable factor other than age (RFOA) defense to federal sector disparate impact claims. Although the administrative decisions cited in your letter do mention RFOA and, in some cases, rely on the Supreme Court’s holding in Smith, you correctly note that these cases neither analyze nor turn on the application of the RFOA defense.

Assuming that RFOA applies, you also ask for details regarding how the EEOC will interpret this defense in administrative decisions. As the issue has not arisen in a federal sector administrative appeal to the EEOC, and the Commission is currently reviewing public comments concerning its Notice of Proposed Rulemaking on the Definition of “Reasonable Factors Other Than Age” Under the Age Discrimination in Employment Act of 1967, 75 Fed. Reg. 7212 (Feb. 18, 2010), the Commission cannot provide further information regarding its position on this subject.

We hope you find this response helpful. Please note, however, that this letter constitutes informal advice pursuant to 29 C.F.R. § 1626.20(c), and therefore may not be relied upon by an employer within the meaning of section 10 of the Portal to Portal Act of 1947, incorporated into the Age Discrimination in Employment Act of 1967 through section 7(e)(1) of the ADEA.

Sincerely,

Raymond L. Peeler
Senior Attorney Advisor

This page was last modified on November 4, 2010.

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