7212 Federal Register / Vol. 75, No. 32 / Thursday, February 18, 2010 / Proposed Rules 

the wheel from service within 15 CIS after 

the effective date of this AD. 

(2) Thereafter, remove HPT stage 2 wheels, 

P/N 23084520, before exceeding the new, 

reduced engine cycle life limit (ECLL) of 

23,000 CSN. 

(k) For HPT stage 2 wheels, P/N 23075345 

and 23074644, do the following: 

(1) For wheels that have 19,985 CSN or 

more on the effective date of this AD, remove 

the wheel from service within 15 CIS after 

the effective date of this AD unless paragraph 

(k)(3) of this AD applies. 

(2) Thereafter, remove HPT stage 2 wheels, 

P/N 23075345 and 23074644, before 

exceeding the new, reduced ECLL of 20,000 

CSN. 

(3) For HPT stage 2 wheels, P/N 23075345, 

that have a S/N listed in Table 5 of this AD 

and that have 22,985 CSN or more on the 

effective date of this AD, remove the wheel 

from service within 15 CIS after the effective 

date of this AD. 

(4) Thereafter, for HPT stage 2 wheels, P/N 

23075345, that have a S/N listed in Table 5 

of this AD, remove the wheel from service 

before exceeding the new, reduced ECLL of 

23,000 CSN. 

TABLE 5—S/NS OF HPT STAGE 2 WHEEL, P/N 23075345, ELIGIBLE TO REMAIN IN SERVICE UNTIL 23,000 CSN 

MM507646 MM508205 MM508251 MM508322 

MM508144 MM508208 MM508264 MM508337 

MM508153 MM508211 MM508305 MM508338 

MM508176 MM508221 MM508311 MM508382 

MM508186 MM508241 MM508319 MM508387 

MM508188 MM508248 MM508320 

(l) For wheels, P/N 23069438, in engines 

that have not complied with RRC SB AE 

3007A–72–176, Revision 5, dated September 

2, 2008, or SB AE 3007A–72–215, Revision 

2, dated September 28, 2009, remove the 

wheel before exceeding the new, reduced 

ECLL of 10,000 CSN. 

(m) For wheels, P/N 23069438, in engines 

that have complied with RRC SB AE 3007A– 

72–176, Revision 5, dated September 2, 2008 

or SB AE 3007A–72–215, Revision 2, dated 

September 28, 2009, do the following: 

(1) For wheels that have 19,985 CSN or 

more on the effective date of this AD, remove 

the wheel from service within 15 CIS after 

the effective date of this AD. 

(2) Thereafter, remove the wheel from 

service before exceeding the new, reduced 

ECLL of 20,000 CSN. 

Alternative Methods of Compliance 

(n) The Manager, Chicago Aircraft 

Certification Office, has the authority to 

approve alternative methods of compliance 

for this AD if requested using the procedures 

found in 14 CFR 39.19. 

Special Flight Permits 

(o) Under 14 CFR 39.23, we are limiting the 

special flight permits for this AD by 

restricting the flight to essential flight crew 

only. 

Related Information 

(p) Contact Kyri Zaroyiannis, Aerospace 

Engineer, Chicago Aircraft Certification 

Office, Small Airplane Directorate, FAA, 

2300 E. Devon Ave., Des Plaines, IL 60018; 

e-mail: kyri.zaroyiannis@faa.gov; telephone 

(847) 294–7836; fax (847) 294–7834, for more 

information about this AD. 

Issued in Burlington, Massachusetts, on 

February 11, 2010. 

Francis A. Favara, 

Manager, Engine and Propeller Directorate, 

Aircraft Certification Service. 

[FR Doc. 2010–3145 Filed 2–17–10; 8:45 am] 

BILLING CODE 4910–13–P 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 

29 CFR Part 1625 

RIN 3046–AA87 

Definition of ‘‘Reasonable Factors 

Other Than Age’’ Under the Age 

Discrimination in Employment Act 

AGENCY: Equal Employment 

Opportunity Commission 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Equal Employment 

Opportunity Commission (‘‘EEOC’’ or 

‘‘Commission’’) is issuing this notice of 

proposed rulemaking (‘‘NPRM’’) to 

address the meaning of ‘‘reasonable 

factors other than age’’ (RFOA) under 

the Age Discrimination in Employment 

Act (‘‘ADEA’’). 

DATES: Comments must be received on 

or before April 19, 2010. The 

Commission will consider any 

comments received on or before the 

closing date and thereafter adopt final 

regulations. Comments received after 

the closing date will be considered to 

the extent practicable. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• By mail to Stephen Llewellyn, 

Executive Officer, Executive Secretariat, 

Equal Employment Opportunity 

Commission, U.S. Equal Employment 

Opportunity Commission, 131 ‘‘M’’ 

Street, NE., Washington, DC 20507. 

• By facsimile (‘‘FAX’’) machine to 

(202) 663–4114. (There is no toll free 

FAX number). Only comments of six or 

fewer pages will be accepted via FAX 

transmittal, in order to assure access to 

the equipment. Receipt of FAX 

transmittals will not be acknowledged, 

except that the sender may request 

confirmation of receipt by calling the 

Executive Secretariat staff at (202) 663– 

4070 (voice) or (202) 663–4074 (TTY). 

(These are not toll free numbers). 

• By the Federal eRulemaking Portal: 

http://www.regulations.gov. After 

accessing this Web site, follow its 

instructions for submitting comments. 

Instructions: All comment 

submissions must include the agency 

name and docket number or the 

Regulatory Information Number (RIN) 

for this rulemaking. Comments need be 

submitted in only one of the abovelisted formats, not all three. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information you provide. 

Copies of the received comments also 

will be available for inspection in the 

EEOC Library, FOIA Reading Room, by 

advanced appointment only, from 9 a.m. 

to 5 p.m., Monday through Friday 

except legal holidays, from April 19, 

2010 until the Commission publishes 

the rule in final form. Persons who 

schedule an appointment in the EEOC 

Library, FOIA Reading Room, and need 

assistance to view the comments will be 

provided with appropriate aids upon 

request, such as readers or print 

magnifiers. To schedule an appointment 

to inspect the comments at the EEOC 

Library, FOIA Reading Room, contact 

the EEOC Library by calling (202) 663– 

4630 (voice) or (202) 663–4641 (TTY). 

(These are not toll free numbers). 

FOR FURTHER INFORMATION CONTACT: 

Dianna B. Johnston, Assistant Legal 

Counsel, or Lyn J. McDermott, Senior 

Attorney-Advisor, at (202) 663–4638 

(voice) or (202) 663–7026 (TTY). (These 

are not toll free numbers). This notice 

also is available in the following 

formats: Large print, Braille, audio tape 

and electronic file on computer disk. 

Requests for this notice in an alternative 

format should be made to the 

Publications Information Center at 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

Federal Register / Vol. 75, No. 32 / Thursday, February 18, 2010 / Proposed Rules 7213 

1 544 U.S. 228 (2005). 

2 544 U.S. 228 (2005). 

3 Id. at 241–42. 

4 Id. at 233–40. Title VII prohibits employment 

discrimination based on race, color, religion, sex, 

and national origin. In Griggs v. Duke Power Co., 

401 U.S. 424 (1971), the Supreme Court first 

recognized the disparate impact theory of 

discrimination under Title VII. The Court held that 

Title VII prohibits not only intentional 

discrimination but also employment practices that, 

because they have a disparate impact on a group 

protected by Title VII, are ‘‘fair in form but 

discriminatory in operation.’’ 401 U.S. at 431. 

5 544 U.S. at 233–40. 

6 Id. at 235 n.5 (quoting Report of the Sec’y of 

Labor, The Older American Worker: Age 

Discrimination in Employment 3 (1965), reprinted 

in U.S. EEOC, Leg. History of the ADEA 21 (1981) 

(‘‘Wirtz Report’’)). Section 715 of the Civil Rights 

Act of 1964 directed the Secretary of Labor ‘‘to make 

a full and complete study of the factors which 

might tend to result in discrimination in 

employment because of age and of the 

consequences of such discrimination on the 

economy and individuals affected.’’ 78 Stat. 265. 

Secretary W. Willard Wirtz presented his findings 

and recommendations in the Wirtz Report. 

7 544 U.S. at 235 n.5. 

8 Id. at 240. The Court found that the presence of 

the RFOA provision supported its conclusion that 

disparate impact claims are cognizable under the 

ADEA. Id. at 238–40. 

9 Id. at 239. 

10 29 U.S.C. 206(d)(1). 

11 544 U.S. at 239 n.11 (emphasis in the original). 

12 490 U.S. 642 (1989). The Wards Cove Court 

ruled that, in a Title VII disparate-impact case, the 

plaintiff must isolate and identify the specific 

employment practice that has a disparate impact. 

Although the defendant had the burden of 

articulating a business justification for the 

challenged practice, the burden of persuasion 

remained at all times with the plaintiff. According 

to the Court, ‘‘at the justification stage, * * * the 

dispositive issue is whether a challenged practice 

serves, in a significant way, the legitimate 

employment goals of the employer.’’ Id. at 659. If 

the challenged practice was justified by business 

necessity, the plaintiff could still prevail by 

showing that the employer refused to adopt an 

equally effective, less discriminatory alternative. Id. 

at 660–61. 

13 544 U.S. at 240 (citing the Civil Rights Act of 

1991, sec. 2, 105 Stat. 1071). 

14 Id. at 240. The ‘‘identical’’ language is in section 

703(a)(2) of Title VII (42 U.S.C. 2000e–2(a)(2)) and 

section 4(a)(2) of the ADEA (29 U.S.C. 623(a)(2)), 

which make it unlawful for employers ‘‘to limit, 

segregate, or classify’’ individuals in a manner that 

would ‘‘deprive or tend to deprive any individual 

of employment opportunities or otherwise 

adversely affect his status as an employee, because 

of such individual’s [protected status].’’ 

The language of the two statutes significantly 

differs, however, with regard to the applicable 

defense. Unlike the ADEA, which provides a 

defense when the practice is based on a reasonable 

factor other than age (29 U.S.C. 623(f)(1)), Title VII 

provides a defense only when the practice is job 

related and consistent with business necessity (42 

U.S.C. 2000e–2(k)(1)(A)). 

1–800–669–3362 (voice) or 1–800–800– 

3302 (TTY). 

SUPPLEMENTARY INFORMATION: On March 

31, 2008, the EEOC published a Notice 

of Proposed Rulemaking (‘‘NPRM’’) 

proposing to amend its regulations to 

reflect the Supreme Court’s decision in 

Smith v. City of Jackson.1 73 FR 16807, 

Mar. 31, 2008. The NPRM proposed to 

revise 29 CFR 1625.7(d) to state that an 

employment practice that has an 

adverse impact on 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.’’ The proposed 

revision also stated that the individual 

challenging the allegedly unlawful 

employment practice bears the burden 

of isolating and identifying the specific 

employment practice responsible for the 

adverse impact. The Commission also 

proposed to revise 29 CFR 1625.7(e) to 

state that, when the RFOA exception is 

raised, the employer has the burden of 

showing that a reasonable factor other 

than age exists factually. 

In addition to requesting public 

comment on the proposed rule, the 

Commission asked whether regulations 

should provide more information on the 

meaning of ‘‘reasonable factors other 

than age’’ and, if so, what the regulations 

should say. Eight commenters 

supported efforts to provide more 

information on the issue, one 

commenter thought the EEOC should 

not provide additional information, and 

one commenter did not address the 

question. After consideration of the 

public comments, and in light of recent 

Supreme Court decisions, the 

Commission believes it appropriate to 

issue a new NPRM to address the scope 

of the RFOA defense. Accordingly, 

before finalizing its regulations 

concerning disparate impact under the 

ADEA, the Commission is publishing 

this new NPRM proposing to amend its 

regulations to define ‘‘reasonable factors 

other than age.’’ 

Recent Supreme Court Decisions 

In Smith v. City of Jackson,2 the 

United States Supreme Court held that 

the ADEA authorizes recovery for 

disparate impact claims of 

discrimination and that the ‘‘reasonable 

factors other than age’’ test, rather than 

the business-necessity test, is the 

appropriate standard for determining 

the lawfulness of a practice that 

disproportionately affects older 

individuals. 

The Smith plaintiffs, senior police 

and public safety officers, alleged that 

the defendant City’s pay plan had a 

disparate impact on older workers 

because it gave proportionately larger 

pay increases to newer officers than to 

more senior officers. Older officers, who 

tended to hold senior positions, on 

average received raises that represented 

a smaller percentage of their salaries 

than did the raises given to younger 

officers. The City explained that, after a 

survey of salaries in comparable 

communities, it raised the junior 

officers’ salaries to make them 

competitive with those for comparable 

positions in the region.3

The Supreme Court ruled that 

plaintiffs may challenge facially neutral 

employment practices under the ADEA 

but that the ‘‘scope of disparate-impact 

liability under the ADEA is narrower 

than under Title VII’’ of the Civil Rights 

Act of 1964, 42 U.S.C. 2000e et seq.4

The Court relied in large part on the 

parallel prohibitory language and the 

common purposes of the ADEA and 

Title VII.5 The Court noted that, in 

passing the ADEA, Congress was 

concerned that application of facially 

neutral employment standards, such as 

a high school diploma requirement, may 

‘‘unfairly’’ limit the employment 

opportunities of older individuals.6 The 

Court observed that there is a 

‘‘remarkable similarity between the 

congressional goals’’ of Title VII and 

‘‘those present in the Wirtz Report.’’ 7

At the same time, however, the Court 

identified two key textual differences 

that affect the relative scope of disparate 

impact liability under the two statutes. 

First, the ADEA contains the RFOA 

provision, which has no parallel in Title 

VII and precludes liability for actions 

‘‘otherwise prohibited’’ by the statute 

‘‘where the differentiation is based on 

reasonable factors other than age.’’ 8 The 

RFOA provision ‘‘plays its principal 

role’’ in disparate impact cases, where it 

‘‘preclud[es] liability if the adverse 

impact was attributable to a nonage 

factor that was ‘reasonable’.’’ 9

Comparing the RFOA provision with the 

Equal Pay Act provision that precludes 

recovery when a pay differential is 

based on ‘‘any other factor other than 

sex,’’ 10 the Court found it ‘‘instructive’’ 

that ‘‘Congress provided that employers 

could use only reasonable factors in 

defending a suit under the ADEA.’’ 11

Second, in reaction to the decision in 

Wards Cove Packing Co. v. Atonio,12

which ‘‘narrowly construed the 

employer’s exposure to liability on a 

disparate-impact theory,’’ Congress 

amended Title VII but not the ADEA.13

Accordingly, ‘‘Wards Cove’s pre-1991 

interpretation of Title VII’s identical 

language remains applicable to the 

ADEA.’’ 14

Applying its analysis, the Court 

rejected the Smith plaintiffs’ disparate 

impact claims on the merits. Focusing 

on the plan’s purpose, design, and 

implementation, the Court found that 

the City’s pay plan was based on 

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7214 Federal Register / Vol. 75, No. 32 / Thursday, February 18, 2010 / Proposed Rules 

15The Court also ruled that the plaintiffs failed 

to satisfy Wards Cove’s requirement that they 

identify a ‘‘specific test, requirement, or practice 

within the pay plan that has an adverse impact on 

older workers.’’ 544 U.S. at 241. 

16 Id. at 242. 

17 Id. at 243. 

18See, e.g., Pippin v. Burlington Res. Oil & Gas 

Co., 440 F.3d 1186, 1200 (10th Cir. 2006); Meacham 

v. Knolls Atomic Power Lab., 461 F.3d 134, 141–43 

(2d Cir. 2006), vacated and remanded, 128 S. Ct. 

2395 (2008). 

19 128 S. Ct. 2395 (2008). 

20 Id. at 2398–99. The Second Circuit initially 

affirmed a jury verdict for the plaintiffs on their 

disparate impact claim. Id. at 2399 (citing Meacham 

v. Knolls Atomic Power Lab., 381 F.3d 56, 74–47 (2d 

Cir. 2004)). Following the Smith decision, the 

Supreme Court vacated the judgment and remanded 

the case to the appellate court. On remand, a 

divided panel of the Second Circuit ruled that 

plaintiffs bear the burden of persuasion on the 

RFOA defense and held that the plaintiffs had not 

met that burden. Id. (citing Meacham v. Knolls 

Atomic Power Lab., 461 F.3d 134, 140–41, 144 (2d 

Cir. 2006)). 

21 Id. at 2400. 

22 Id. at 2402. 

23 Id. at 2403. 

24 Id. at 2404. 

25 Id. at 2406. 

26 42 U.S.C. 2000e–2(k)(1)(A)(i) (noting that a 

particular employment practice that has a disparate 

impact based on race, color, religion, sex, or 

national origin is unlawful unless the employer 

‘‘demonstrate[s] that the challenged practice is job 

related for the position in question and consistent 

with business necessity’’). 

27 29 U.S.C. 206(d)(1)(iv) (noting that a sex-based 

wage differential is not unlawful when payment is 

made pursuant to ‘‘a differential based on any other 

factor other than sex’’). 

28See Meacham, 128 S. Ct. at 2403 (‘‘The focus 

of the defense is that the factor relied upon was a 

‘reasonable’ one for the employer to be using.’’). 

29 Smith, 544 U.S. at 239 n.11 (citing 29 U.S.C. 

206(d)(1) (Equal Pay Act recovery barred where pay 

differential is ‘‘based on any other factor other than 

reasonable factors other than age.15 The 

Court noted that the City grouped 

officers by seniority in five ranks and set 

wage ranges based on salaries in 

comparable communities. Most of the 

officers were in the three lowest ranks, 

where age did not affect officers’ pay. In 

the two highest ranks, where all of the 

officers were over 40, raises were higher 

in terms of dollar amounts; they were 

lower only in terms of percentage of 

salary. The Court concluded that the 

plan, as designed and administered, 

‘‘was a decision based on a ‘reasonable 

factor other than age’ that responded to 

the City’s legitimate goal of retaining 

police officers.’’ 16

Finally, the Court noted that, although 

‘‘there may have been other reasonable 

ways for the City to achieve its goals, 

the one selected was not unreasonable.’’ 

‘‘Unlike the business necessity test, 

which asks whether there are other 

ways for the employer to achieve its 

goals that do not result in a disparate 

impact on a protected class, the 

reasonableness inquiry includes no such 

requirement.’’ 17

Smith did not specify which party 

bore the burden of persuasion on the 

RFOA defense, and most of the lower 

courts that addressed the issue after 

Smith held that the plaintiff bore the 

burden of proving that the employer’s 

action was unreasonable.18

Subsequently, in Meacham v. Knolls 

Atomic Power Lab.,19 the Supreme 

Court held that an employer defending 

an ADEA disparate-impact claim bears 

both the burden of production and the 

burden of persuasion on the reasonable 

factors other than age defense. 

Knolls Atomic Power Laboratories 

(‘‘KAPL’’), the employer in Meacham, 

instituted an involuntary reduction in 

force (‘‘IRIF’’) in 1996 to reduce its 

workforce by 31 employees. To identify 

employees for the IRIF, KAPL asked 

managers to rate their employees on 

three factors—performance, flexibility, 

and the criticality of their skills—and to 

add points for years of service. 

Managers then ranked employees 

according to their scores and identified 

the lowest ranked employees for layoff. 

Thirty of the 31 employees selected for 

layoff were older than 40, even though 

only approximately 58% of the 

workforce was older than 40. The 

plaintiffs’ statistical expert testified that 

the manner in which managers 

subjectively scored employees for 

flexibility and criticality accounted for 

the statistically significant disparities.20

Relying on the text and structure of 

the ADEA, the Supreme Court ruled that 

the RFOA provision creates an 

affirmative defense. The provision is in 

section 623(f)(1), which lists exemptions 

for employer practices ‘‘otherwise 

prohibited’’ by sections 623(a), (b), (c), 

or (e). As the court observed, it is a 

‘‘longstanding convention’’ that the party 

claiming the benefits of an exemption 

bears the burden of proof.21

The Court noted that the bona fide 

occupational qualification provision, 

which also is in section 623(f)(1), 

creates an affirmative defense. The 

Court also noted that it has interpreted 

the Equal Pay Act exemption for pay 

differentials based on ‘‘any other factor 

other than sex’’ as an affirmative 

defense. In addition, in the Older 

Workers Benefit Protection Act, 

Congress added the phrase ‘‘otherwise 

prohibited’’ to section 623(f)(2) of the 

ADEA to clarify that the section 

establishes an affirmative defense. This 

confirms that the phrase ‘‘refers to an 

excuse or justification’’ and signals an 

affirmative defense on which the 

employer bears the burden of proof.22

The Court rejected KAPL’s argument 

that, to prove that an adverse action 

occurred because of age, plaintiffs must 

show that the challenged employment 

practice was not based on a reasonable 

factor other than age.23 The Court also 

rejected the Second Circuit’s conclusion 

that plaintiffs have the RFOA burden of 

persuasion because plaintiffs bore the 

business necessity burden of persuasion 

under Wards Cove and the RFOA 

defense ‘‘replaces’’ the business 

necessity test. That ‘‘the business 

necessity test should have no place in 

ADEA disparate-impact cases’’ does not 

preclude a finding ‘‘that the RFOA 

exemption is an affirmative defense.’’ 24

Finally, the Court noted that, ‘‘the 

more plainly reasonable’’ the non-age 

factor, the smaller the difference 

between the burdens of production and 

persuasion. ‘‘It will be mainly in cases 

where the reasonableness of the non-age 

factor is obscure for some reason, that 

the employer will have more evidence 

to reveal and more convincing to do in 

going from production to persuasion.’’ 25

Revisions to Agency Regulations 

The Commission proposes to revise 

current paragraph 1625.7(b) to clarify 

the scope of the RFOA defense. 

Consistent with Smith and Meacham, 

the proposed revision explains that 

whether a particular employment 

practice is based on reasonable factors 

other than age turns on the facts and 

circumstances of each particular 

situation and whether the employer 

acted prudently in light of those facts. 

This standard is lower than Title VII’s 

business-necessity test 26 but higher 

than the Equal Pay Act’s ‘‘any other 

factor’’ test.27 It represents a balanced 

approach that preserves an employer’s 

right to make reasonable business 

decisions while protecting older 

workers from facially neutral 

employment criteria that arbitrarily 

limit their employment opportunities. 

Proposed paragraph 1625.7(b) notes 

that 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. 

Reasonable 

In General 

The statutory requirement that the 

non-age factor be reasonable is a key 

element of the RFOA defense.28 In 

Smith, the Court found it ‘‘instructive’’ 

that the ADEA provides a defense only 

when the factor is reasonable, unlike the 

Equal Pay Act, which the Court said 

permits an employer to justify a pay 

differential by proving that it is based 

on any factor other than sex.29 The test 

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sex’’)); compare id. with 29 U.S.C. 623(f)(1) (ADEA’s 

RFOA provision, which bars recovery only when 

based on a reasonable factor other than age). Cf. 

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 

660 (1989) (‘‘A mere insubstantial justification 

* * * will not suffice, because such a low standard 

of review would permit discrimination to be 

practiced through the use of spurious, seemingly 

neutral employment practices.’’). 

30See W. Page Keeton et al., ‘‘Prosser and Keeton 

on Torts’’ 1, at 4–6 (5th ed. 1984) (torts ‘‘consist of 

the breach of duties fixed * * * by law,’’ provide 

‘‘compensation of individuals, rather than the 

public, for losses which they have suffered within 

the scope of their legally recognized interests,’’ and 

impose liability ‘‘upon conduct which is socially 

unreasonable’’). 

The Supreme Court has turned to tort law for 

useful guidance in resolving employment 

discrimination cases. See, e.g., Kolstad v. American 

Dental Assn., 527 U.S. 526, 538 (1999) (employer’s 

state of mind relevant to award of punitive 

damages); Faragher v. City of Boca Raton, 524 U.S. 

775, 799–802 (1998) (because lower courts have 

applied a negligence standard to coworker 

harassment, it is not appropriate to treat 

supervisory harassment as being within the scope 

of employment; however, agency principles 

weighed in favor of holding an employer 

vicariously liable for some tortious conduct of a 

supervisor made possible by abuse of his 

supervisory authority). So, too, have lower courts. 

See Baskerville v. Culligan International Company, 

50 F.3d 428, 432 (7th Cir. 1995) (Posner, J.) (in 

determining when an employer has taken 

reasonable steps to discover and rectify acts of 

sexual harassment of its employees, the court 

observed that ‘‘what is reasonable depends on the 

gravity of the harassment[; j]ust as in conventional 

tort law a potential injurer is required to take more 

care, other things being equal, to prevent 

catastrophic accidents than to prevent minor ones, 

[citing, inter alia]; W. Page Keeton et al., ‘‘Prosser 

and Keeton on the Law of Torts’’ 34, at 208 (5th ed. 

1984)’’; Shager v. Upjohn Co., 913 F.2d 398, 405 

(7th Cir. 1990) (noting that age discrimination 

constitutes a tort and therefore doctrine of 

respondeat superior applies). 

31Cf. Restatement (Second) of Torts 283 (1965) 

(standard of conduct to avoid liability for 

negligence ‘‘is that of a reasonable man under like 

circumstances’’). 

32Cf. Restatement (Second) of Torts 283 cmt. c 

(1965) (‘‘reasonable man’’ standard refers to a person 

of ‘‘ordinary prudence’’). 

33See Smith, 544 U.S. at 235, n.5 (quoting Wirtz 

Report). 

34Cf. Faragher v. City of Boca Raton, 524 U.S. 

775, 808–09 (1998) (rejecting employer’s argument 

that it should not be held liable for negligently 

failing to promulgate anti-harassment policy where 

EEOC regulations advised employers to take all 

steps necessary to prevent harassment and holding 

as a matter of law that employer did not exercise 

reasonable care to prevent sexual harassment). 

35See Smith, 544 U.S. at 235 n.5 (quoting Wirtz 

Report’s discussion of employment standards that 

unfairly limit employment opportunities of older 

individuals). 

36See id. at 241 (‘‘it is not surprising that certain 

employment criteria that are routinely used may be 

reasonable despite their adverse impact on older 

workers as a group’’). 

37See Pippin v. Burlington Res. Oil & Gas Co., 

440 F.3d 1186, 1200–01 (10th Cir. 2006) (finding 

that reliance on performance ratings and employee 

skill sets when choosing workers for layoff was 

reasonable as a matter of law but placing RFOA 

burden of persuasion on plaintiff). 

38See, e.g., Meacham v. Knolls Atomic Power 

Lab., 461 F.3d 134, 144 (2d Cir. 2006) (noting that 

employer’s expert testified that ‘‘ ‘criticality’ and 

‘flexibility’ were ubiquitous components of ‘systems 

for making personnel decisions’ ’’), vacated and 

remanded, 128 S. Ct. 2395 (2008). However, 

selecting employees for retention based on their 

work schedule ‘‘flexibility’’ might expose an 

employer to allegations of disparate treatment or 

failure to accommodate under Title VII or the 

Americans with Disabilities Act, 42 U.S.C. 12101 et 

seq. For example, ranking employees according to 

their ability to work flexible schedules might affect 

an employee who has been assigned to a regular, 

set schedule as a reasonable accommodation. 39Cf. Burlington Industries, Inc. v. Ellerth, 524 

U.S. 742, 759 (1998) (applying agency principles, 

the Court noted that an employer may be liable for 

a supervisor’s sexual harassment when the 

employer’s ‘‘own negligence is a cause of the 

harassment’’ and that ‘‘[a]n employer is negligent if 

it knew or should have known about the conduct 

and failed to stop it’’). 

for whether an age-based employment 

practice is lawful is not ‘‘rational basis’’; 

instead, the statute requires that the 

practice be ‘‘reasonable.’’ In defining 

what factors are reasonable, we look to 

tort law,30 which contains the most 

extensive legal definition of 

reasonableness. 

Proposed paragraph 1625.7(b)(1) 

explains that a reasonable factor is one 

that is objectively reasonable when 

viewed from the position of a reasonable 

employer under like circumstances.31 It 

is one that would be used in a like 

manner by a prudent 32 employer 

mindful of its responsibilities under the 

ADEA. In light of Smith and Meacham, 

a prudent employer knows or should 

know that the ADEA was designed in 

part to avoid the application of neutral 

employment standards that 

disproportionately affect the 

employment opportunities of older 

individuals.33 Accordingly, a reasonable 

factor is one that an employer exercising 

reasonable care to avoid limiting the 

employment opportunities of older 

persons would use.34

Consistent with Smith, proposed 

paragraph 1625.7(b)(1) provides that the 

RFOA defense requires evidence that 

the challenged practice was reasonably 

designed to further or achieve a 

legitimate business purpose and was 

reasonably administered to achieve that 

purpose.35 In Smith, for example, the 

method chosen by the employer to 

compete for new personnel was one 

used by most employers in like 

circumstances—raising the salaries of 

the least senior employees to attract new 

applicants. That an employer uses a 

common business practice is not 

dispositive of reasonableness, but it 

weighs in the employer’s favor.36

In addition to the employment 

practice’s design, the way in which it is 

administered affects its reasonableness. 

For example, for purposes of the RFOA 

defense, it may be reasonable to 

consider factors such as job performance 

and skill sets when deciding whom to 

discharge during a reduction in force.37

It also may be reasonable to consider the 

extent to which an employee possesses 

a critical skill (i.e., one that is key to the 

employer’s operations), or is flexible 

(i.e., has skills that can be used in 

various assignments or has the ability to 

acquire new skills).38 Use of such 

factors is reasonable under the ADEA if 

the employer has made reasonable 

efforts to administer its employment 

practice accurately and fairly and has 

assessed the age-based impact of the 

practice and taken steps to ameliorate 

unnecessary and avoidable harm. Steps 

such as training its managers to avoid 

age-based stereotyping, identifying 

specific knowledge or skills the 

employer wants to retain (e.g., 

familiarity with the company’s filing 

system or ability to integrate different 

computer networks), and providing 

guidance on how to measure flexibility 

(e.g., whether an employee performs a 

variety of tasks or willingly accepts new 

assignments) are evidence of 

reasonableness. 

The determination of reasonableness 

also requires consideration of what the 

employer knew or should have known 

about the practice’s impact when it took 

the challenged action.39 If the employer 

had no reason to know that its actions 

would have an age-based adverse 

impact, then it cannot be expected to 

take any action to ameliorate such 

impact. An employer, however, cannot 

hide behind lack of knowledge. A 

reasonable employer implementing 

practices that harm significant numbers 

of employees will evaluate the process 

to determine whether its practice has a 

disproportionate impact based on age. If 

the practice has a substantial adverse 

age-based impact, the employer’s failure 

to have measured the impact will not 

protect it from a finding that it should 

have known of the impact. 

Relevant Factors 

To aid in assessing whether an 

employment practice is based on a 

reasonable factor other than age, 

proposed paragraph 1625.7(b)(1) sets 

forth a nonexhaustive list of factors that 

may be relevant to the RFOA defense. 

As noted above, relevant considerations 

include whether the practice and its 

implementation are common business 

practices and the extent to which the 

employer took steps to assess and 

ameliorate the adverse impact on older 

workers. The extent to which the factor 

is related to the employer’s stated 

business goals also is relevant to 

whether it is a reasonable one. For 

example, in Smith, the city’s ‘‘decision 

to grant a larger raise to lower echelon 

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40Smith, 544 U.S. at 242. 

41Restatement (Second) of Torts 293 (1965) (in 

determining the magnitude of the risk for the 

purpose of determining whether the actor is 

negligent, factors that must be considered include 

the extent of the likely harm and the number of 

persons whose interests are likely to be harmed). 

42The city’s pay plan divided five police ranks 

into a series of steps and set the wages for the ranks 

based on a survey of wages in surrounding 

communities. Most of the officers were in the three 

lowest ranks, where age did not affect 

compensation. Compensation was affected only in 

the two highest ranks, police lieutenant and deputy 

police chief, where all of the officers were over 40. 

Although the raises given to the more senior older 

workers were smaller in percentage terms than the 

raises given to the less senior younger workers, they 

were larger in dollar terms. Overall, approximately 

66% of the officers under 40 received raises of more 

than 10% while approximately 45% of those over 

40 did. Smith, 544 U.S. at 241–42. 

43Cf. Restatement (Second) of Torts 298 cmt. b 

(1965) (‘‘The greater the danger, the greater the care 

which must be exercised.’’). 

44 Meacham v. Knolls Atomic Power Lab., 461 

F.3d 134, 145 (2d Cir. 2006), vacated, 128 S. Ct. 

2395 (2008). 

45Cf. Restatement (Second) of Torts 292 cmt. c 

(1965) (‘‘if the actor can advance or protect his 

interest as adequately by other conduct which 

involves less risk of harm to others, the risk 

contained in his conduct is clearly unreasonable.’’). 

46 Id. 

47Title VII requires an employer to adopt the least 

discriminatory alternative. See 42 U.S.C. 2000e– 

2(k)(1)(A). In contrast, factors listed in the proposed 

paragraph refer to what the employer ‘‘knew or 

should have known’’ at the time of the challenged 

action. These factors recognize that the RFOA test 

is less stringent than the business necessity test and 

that ‘‘the scope of disparate-impact liability under 

ADEA is narrower than under Title VII.’’ Smith, 544 

U.S. at 240. 

48Smith, 544 U.S. at 243. 

49Restatement (Second) of Torts 292, cmt. c 

(1965). 

50See 29 CFR 1625.7(c) (‘‘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.’’); Smith, 544 U.S. at 

239 (RFOA ‘‘preclud[es] liability if the adverse 

impact was attributable to a nonage factor that was 

‘reasonable.’ ’’). 

employees for the purpose of bringing 

salaries in line with that of surrounding 

police forces * * * responded to the 

City’s legitimate goal of retaining police 

officers.’’ 40

The extent to which the employer 

took steps to define the factor accurately 

also is relevant to reasonableness. For 

example, an employee’s flexibility may 

be assessed through concrete examples 

of behavior such as accepting or 

resisting new assignments, seeking or 

refusing training, and being open or 

opposed to new ways of doing things. 

Similarly, the steps the employer took to 

apply the factor fairly and accurately 

affect the determination of whether the 

factor was reasonable. For example, the 

extent to which the employer provided 

decision makers with training or other 

guidance on how to implement the 

practice may be relevant to whether the 

practice was administered in a 

reasonable way. 

In addition, the list includes the 

severity of the practice’s impact on 

individuals within the protected age 

group. Severity is measured both in 

terms of the degree of injury to affected 

employees and the scope of the impact, 

i.e., the number of persons 

harmed.41Smith is perhaps the 

quintessential example of negligible 

impact because the impact was slight in 

both degree and scope. Although the 

raises given to older workers were 

smaller in percentage terms, they were 

higher in actual dollar terms. Thus, to 

the extent that any older workers 

suffered any harm, it was minor.42 In 

addition, to the extent workers could be 

said to have been disadvantaged, the 

numbers of those so affected were small. 

The other end of the severity 

spectrum is one in which the harm to 

affected individuals is significant and 

falls primarily on older individuals. The 

more severe the harm, the greater the 

care that ought to be exercised.43 This 

end of the spectrum is exemplified by 

the facts in Meacham, where the 

affected employees lost their jobs and 

the age-based effect was ‘‘startlingly 

skewed.’’ 44 This is not to say that a 

reasonable employer must entirely 

eliminate the impact but, rather, that a 

reasonable employer would investigate 

the reason for the result and attempt to 

reduce the impact to the extent 

appropriate to the given facts. 

The extent to which the employer 

took preventive or corrective steps to 

minimize the severity of the harm, in 

light of the burden of undertaking such 

steps, also is relevant to the issue of 

reasonableness. As noted in the 

Restatement, the reasonableness of the 

employer’s actions also includes 

consideration of the relationship 

between the severity of the harm and 

the availability of measures that would 

reduce or eliminate the risk of harm.45

If, as in Smith, the harm is negligible 

both in terms of the numbers affected 

and the degree of harm to those affected, 

it is not necessary to consider whether 

there are measures that would further 

reduce or eliminate the harm. 

On the other hand, if the harm is 

severe, the determination of 

reasonableness includes consideration 

of whether the employer knew or 

should have known of measures that 

would reduce or eliminate the harm and 

the extent of the burden that 

implementing such measures would 

place on the employer.46 For example, 

a reduction-in-force designed to cut 

costs by terminating sales people with 

the highest salaries might severely affect 

older workers. The employer could 

mitigate the harm by also considering 

the sales revenues that the affected 

individuals generated. By considering 

revenue as well as salary, the process 

would reasonably achieve the 

employer’s important goal of cutting 

costs without unfairly limiting the 

employment opportunities of older 

individuals. 

Finally, the determination of 

reasonableness includes consideration 

of whether other options were available 

and the reasons the employer selected 

the option it did. As the proposed 

regulation notes, this does not require 

an employer to adopt a practice that has 

the least impact on members of the 

protected group. Unlike Title VII’s 

business necessity defense, which 

requires an employer to use the least 

discriminatory alternative,47 ‘‘the 

reasonableness inquiry includes no such 

requirement.’’ 48 Thus, the availability of 

a less discriminatory practice does not 

by itself make a challenged practice 

unreasonable. 

That the reasonableness inquiry does 

not require an employer to use the least 

discriminatory alternative, however, 

does not mean that the existence of 

alternatives is irrelevant. An employer’s 

knowledge of and failure to use equally 

effective, but less discriminatory, 

alternatives is relevant to whether the 

employer’s chosen practice is 

reasonable. This is especially true if the 

chosen practice significantly affects the 

employment opportunities of older 

individuals but only marginally 

advances a minor goal of the employer. 

‘‘If the actor can advance or protect his 

interest as adequately by other conduct 

which involves less risk of harm to 

others, the risk contained in his conduct 

is clearly unreasonable.’’ 49

On the other hand, the dearth of 

equally effective options also is relevant 

to whether the employer’s chosen 

practice is reasonable. The fewer 

options available, the more reasonable 

the employer’s action appears. Thus, for 

example, a practice that appears 

unreasonable in the abstract because it 

severely affected a high percentage of 

older workers might in fact be 

reasonable because there were no other 

options or the available options were 

more burdensome than the one chosen. 

Factors Other Than Age 

Proposed paragraph 1625.7(b)(2) 

makes clear that, for the RFOA defense 

to apply, the challenged practice must 

be based on a non-age factor.50 As the 

proposed paragraph notes, disparate 

impact challenges typically involve 

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51See Meacham, 128 S. Ct. at 2403 (‘‘in the 

typical disparate-impact case, the employer’s 

practice is ‘without respect to age’ and its adverse 

impact (though ‘because of age’) is ‘attributable to 

a nonage factor’ * * *’’). 

52See Hazen Paper Co. v. Biggins, 507 U.S. 604, 

611 (1993) (‘‘Because age and years of service are 

analytically distinct, an employer can take account 

of one while ignoring the other, and thus it is 

incorrect to say that a decision based on years of 

service is necessarily ‘age based.’ ’’); Anderson v. 

Baxter Healthcare Corp., 13 F.3d 1120, 1125–26 

(7th Cir. 1994) (age and compensation levels are 

analytically distinct). 

53See Durante v. Qualcomm, 144 Fed. Appx. 603, 

606 (9th Cir. 2005) (unpublished) (although 

‘‘ ‘[p]laintiffs generally cannot attack an overall 

decisionmaking process in the disparate impact 

context, [and] must instead identify the particular 

element or practice within the process that causes 

an adverse impact[,]’ * * * an overall decisionmaking process may be subject to a disparate 

impact challenge if the employer utilizes an 

‘undisciplined system of subjective decisionmaking’ ’’) (quoting Stout v. Potter, 276 F.3d 118, 

1124 (9th Cir. 2002) and Watson v. Fort Worth Bank 

& Trust, 487 U.S. 977, 990 (1988)). 

54Watson v. Fort Worth Bank and Trust, 487 U.S. 

977, 990 (1988). 

55Smith, 544 U.S. 228, 234–35 (emphasis in 

original) (citing Griggs v. Duke Power Co., 401 U.S. 

424, 432 (1971)). 

56An employer that gives supervisors unchecked 

discretion to engage in subject decisionmaking 

should also determine whether doing so resulted in 

age-based disparate treatment. Cases challenging 

subjective decisionmaking may involve allegations 

of disparate treatment as well as disparate impact. 

See, e.g., Meacham, 128 S. Ct. at 2398 (noting that 

plaintiffs raised both disparate-treatment and 

disparate-impact claims). 

practices that are based on objective, 

non-age factors.51 Objectively 

measurable factors such as salary and 

seniority are non-age factors. Although 

they may sometimes correlate with age, 

they are analytically and factually 

distinct from age.52

On the other hand, the unchecked use 

of subjective criteria that are subject to 

age-based stereotypes may not be 

distinct from age.53 The Supreme Court 

has recognized that the problem of 

discrimination by lower-level managers 

given unchecked discretion to engage in 

subjective decision making needs to be 

addressed and that disparate impact 

analysis is sometimes the only way to 

do so.54 Like Title VII, the ADEA was 

directed at ‘‘the consequences of 

employment practices, not simply the 

motivation’’ and ‘‘good faith ‘does not 

redeem employment procedures * * * 

that operate as ‘built-in headwinds’ for 

[protected] groups and are unrelated to 

measuring job capability.’ ’’ 55

For example, an employer that is 

downsizing may want to retain 

individuals with the ability to learn new 

computer skills. If the employer makes 

no effort to assess that ability objectively 

but instead gives managers unchecked 

discretion to determine whom to retain, 

the decision makers may act on the 

basis of stereotypes about older workers’ 

willingness or ability to learn computer 

skills. As a consequence, the 

downsizing may result in a significantly 

younger but not necessarily more 

technologically capable workforce. In 

that situation, where age-based 

stereotypes infected an undisciplined 

decision-making process, the employer 

did not rely on a factor other than age. 

An employer that gives unchecked 

discretion to supervisors to engage in 

subjective decision making should 

know that doing so may well cause an 

age-based disparate impact. Thus, 

employers that give their supervisors 

unchecked discretion to make subjective 

decisions expose themselves to liability 

on this basis. They should particularly 

avoid giving such discretion to rate 

employees on criteria known to be 

susceptible to age-based stereotyping, 

such as flexibility, willingness to learn, 

or technological skills. Instead, 

evaluation criteria should be objectified 

to the extent feasible. For example, 

instead of asking supervisors in the 

abstract to rate employees’ willingness 

to take on new tasks, employers should 

instruct supervisors to identify times 

that an employee was asked to perform 

new tasks and to describe the 

employee’s reaction to such 

assignments. In addition, supervisors 

should be trained to become aware of 

and avoid age-based stereotyping. If the 

employer does give supervisors 

unchecked discretion to engage in 

subjective decision making, it should 

determine whether doing so had a 

disparate impact and, if so, should take 

reasonable steps to determine whether 

that impact might be attributable to 

supervisors’ conscious or unconscious 

age bias and to mitigate the problem.56

To aid in assessing whether an 

employment practice is based on a nonage factor, proposed paragraph 

1625.7(b)(2) sets forth a nonexhaustive 

list of factors that are relevant to the 

RFOA defense. Relevant factors include 

the extent to which the employer gave 

supervisors unchecked discretion to 

assess employees subjectively, the 

extent to which supervisors were asked 

to evaluate employees based on factors 

known to be subject to age-based 

stereotypes, and the extent to which 

supervisors were given guidance or 

training about how to apply the factors 

and avoid discrimination. 

The Commission invites comments on 

the proposed changes from all interested 

parties. 

Regulatory Procedures 

Executive Order 12866 

Pursuant to Executive Order 12866, 

EEOC has coordinated this proposed 

rule with the Office of Management and 

Budget. Under section 3(f)(1) of 

Executive Order 12866, EEOC has 

determined that the regulation will not 

have an annual effect on the economy 

of $100 million or more or adversely 

affect in a material way the economy, a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State or local 

tribal governments or communities. 

Therefore, a detailed cost-benefit 

assessment of the regulation is not 

required. 

Paperwork Reduction Act 

This proposal contains no new 

information collection requirements 

subject to review by the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

Regulatory Flexibility Act 

The Commission certifies under 5 

U.S.C. 605(b) that this proposed rule 

will not have a significant economic 

impact on a substantial number of small 

entities because it imposes no economic 

or reporting burdens on such firms and 

makes no change to employers’ 

compliance obligations under the Act. 

Instead, the proposed rule brings the 

Commission’s regulations into 

compliance with recent Supreme Court 

interpretations of the Act. For this 

reason, a regulatory flexibility analysis 

is not required. 

Unfunded Mandates Reform Act of 1995 

This proposed rule will not result in 

the expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

List of Subjects in 29 CFR Part 1625 

Advertising, Age, Employee benefit 

plans, Equal employment opportunity, 

Retirement. 

Dated: February 12, 2010. 

For the Commission. 

Stuart J. Ishimaru, 

Acting Chairman. 

For the reasons set forth in the 

preamble, the Equal Employment 

Opportunity Commission proposes to 

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1This does not mean that an employer must 

adopt an employment practice that has the least 

severe impact on members of the protected age 

group. ‘‘Unlike the business necessity test, which 

asks whether there are other ways for the employer 

to achieve its goals that do not result in a disparate 

impact on a protected class, the reasonableness 

inquiry includes no such requirement.’’ Smith v. 

City of Jackson, 544 U.S. 228, 243 (2005). Instead, 

this simply means that the availability of other 

options is one of the factors relevant to whether the 

practice was a reasonable one. ‘‘If the actor can 

advance or protect his interest as adequately by 

other conduct which involves less risk of harm to 

others, the risk contained in his conduct is clearly 

unreasonable.’’ Restatement (Second) of Torts 292, 

cmt. c (1965). 

amend 29 CFR chapter XIV part 1625 as 

follows: 

PART 1625—AGE DISCRIMINATION IN 

EMPLOYMENT ACT 

1. The authority citation for part 1625 

continues to read as follows: 

Authority: 81 Stat. 602; 29 U.S.C. 621; 5 

U.S.C. 301; Secretary’s Order No. 10–68; 

Secretary’s Order No. 11–68; Sec. 9, 81 Stat. 

605; 29 U.S.C. 628; sec. 12, 29 U.S.C. 631, 

Pub. L. 99–592, 100 Stat. 3342; sec. 2, Reorg. 

Plan No. 1 of 1978, 43 FR 19807. 

Subpart A—Interpretations 

2. Revise paragraph (b) of § 1625.7 to 

read as follows: 

§ 1625.7 Differentiations based on 

reasonable factors other than age. 

* * * * * 

(b) Whether a differentiation is based 

on reasonable factors other than age 

(‘‘RFOA’’) must be decided on the basis 

of all the particular facts and 

circumstances surrounding each 

individual situation. 

(1) Reasonable. A reasonable factor is 

one that is objectively reasonable when 

viewed from the position of a reasonable 

employer (i.e., a prudent employer 

mindful of its responsibilities under the 

ADEA) under like circumstances. 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. Factors relevant to 

determining whether an employment 

practice is reasonable include but are 

not limited to, the following: 

(i) Whether the employment practice 

and the manner of its implementation 

are common business practices; 

(ii) The extent to which the factor is 

related to the employer’s stated business 

goal; 

(iii) The extent to which the employer 

took steps to define the factor accurately 

and to apply the factor fairly and 

accurately (e.g., training, guidance, 

instruction of managers); 

(iv) The extent to which the employer 

took steps to assess the adverse impact 

of its employment practice on older 

workers; 

(v) The severity of the harm to 

individuals within the protected age 

group, in terms of both the degree of 

injury and the numbers of persons 

adversely affected, and the extent to 

which the employer took preventive or 

corrective steps to minimize the severity 

of the harm, in light of the burden of 

undertaking such steps; and 

(vi) Whether other options were 

available and the reasons the employer 

selected the option it did.1

(2) Factors Other Than Age. When an 

employment practice has a significant 

disparate impact on older individuals, 

the RFOA defense applies only if the 

practice is not based on age. In the 

typical disparate impact case, the 

practice is based on an objective nonage factor and the only question is 

whether the practice is reasonable. 

When disparate impact results from 

giving supervisors unchecked discretion 

to engage in subjective decision making, 

however, the impact may, in fact, be 

based on age because the supervisors to 

whom decision making was delegated 

may have acted on the bases of 

conscious or unconscious age-based 

stereotypes. Factors relevant to 

determining whether a factor is ‘‘other 

than age’’ include, but are not limited to, 

the following: 

(i) The extent to which the employer 

gave supervisors unchecked discretion 

to assess employees subjectively; 

(ii) The extent to which supervisors 

were asked to evaluate employees based 

on factors known to be subject to agebased stereotypes; and 

(iii) The extent to which supervisors 

were given guidance or training about 

how to apply the factors and avoid 

discrimination. 

* * * * * 

[FR Doc. 2010–3126 Filed 2–17–10; 8:45 am] 

BILLING CODE 6570–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AN37 

Payment for Inpatient and Outpatient 

Health Care Professional Services at 

Non-Departmental Facilities and Other 

Medical Charges Associated With NonVA Outpatient Care 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: This document proposes to 

update the Department of Veterans 

Affairs (VA) medical regulations 

concerning the payment methodology 

used to calculate VA payments for 

inpatient and outpatient health care 

professional services and other medical 

services associated with non-VA 

outpatient care. 

DATES: Comments must be received on 

or before April 19, 2010. 

ADDRESSES: Written comments may be 

submitted by email through http:// 

www.regulations.gov; by mail or handdelivery to Director, Regulations 

Management (00REG1), Department of 

Veterans Affairs, 810 Vermont Ave., 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AN37—Payment for Inpatient and 

Outpatient Health Care Professional 

Services at Non-Departmental Facilities 

and Other Medical Charges Associated 

with Non-VA Outpatient Care.’’ Copies 

of comments received will be available 

for public inspection in the Office of 

Regulation Policy and Management, 

Room 1063B, between the hours of 8 

a.m. and 4:30 p.m. Monday through 

Friday (except holidays). Please call 

(202) 461–4902 for an appointment. In 

addition, during the comment period, 

comments may be viewed online 

through the Federal Docket Management 

System (FDMS) at http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Joseph C. Enderle, Jr., National Fee 

Program Manager, Department of 

Veterans Affairs, P.O. Box 469066, 

Denver, CO 80246–9066, telephone 

(303) 370–5088. (This is not a toll-free 

number.) 

SUPPLEMENTARY INFORMATION: Under 38 

U.S.C. 1703(a), ‘‘[w]hen [VA] facilities 

are not capable of furnishing 

economical hospital care or medical 

services because of geographical 

inaccessibility or are not capable of 

furnishing the care or services required, 

the Secretary, as authorized in [38 

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