What is the basis for the proposed rule’s definition of “reasonable factors other than age?
The proposed rule is based on our analysis of Smith and Meacham v. Knolls Atomic Power Lab., 128 S. Ct. 2395 (2008) (holding that the employer bears the burden of proving the RFOA defense). In addition, because neither Smith nor Meacham elaborated on the meaning of “reasonable,” the proposed rule refers to tort law’s interpretation of that term. Why did the EEOC rely on tort law? Courts have previously turned to tort law for guidance when resolving employment discrimination cases. For example, courts use a negligence standard to assess employer liability for co-worker harassment. In addition, reasonableness is a fundamental concept of tort law. As a result, tort law offers extensive, well-developed guidance on the meaning of “reasonable.” What does the proposed rule say about “reasonable”? The proposed rule explains that a “reasonable” factor is one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances, both in its design and in
