"Reasonable Factor Other than Age" as an Age Discrimination Defense

Under the ADEA, a specific defense known as the “Reasonable Factor Other than Age” (RFOA) defense is available for disparate impact claims: claims that policies which are neutral on their face have a substantially greater impact on older workers than younger workers. For instance, the RFOA defense would apply to neutral tests, such as physical fitness tests, that are used to screen employees if those tests had a disparate impact on older workers versus younger workers.

The defense is not available when an employment practice is not neutral, and specifically uses age as a limiting criterion (for instance, a company practice that states that the