Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 19095 

List of Subjects in 29 CFR Part 1625 

Advertising, Age, Employee benefit 

plans, Equal employment opportunity, 

Retirement. 

Dated: March 7, 2012. 

For the Commission. 

Jacqueline A. Berrien, 

Chair. 

For the reasons set forth in the 

preamble, the Equal Employment 

Opportunity Commission 29 CFR 

chapter XIV part 1625 is amended 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. In § 1625.7, revise paragraphs (b) 

through (e) to read as follows: 

§ 1625.7 Differentiations based on 

reasonable factors other than age (RFOA). 

* * * * * 

(b) 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. 

(c) Any employment practice that 

adversely affects 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.’’ An individual challenging 

the allegedly unlawful practice is 

responsible for isolating and identifying 

the specific employment practice that 

allegedly causes any observed statistical 

disparities. 

(d) Whenever the ‘‘reasonable factors 

other than age’’ defense is raised, the 

employer bears the burdens of 

production and persuasion to 

demonstrate the defense. The 

‘‘reasonable factors other than age’’ 

provision is not available as a defense 

to a claim of disparate treatment. 

(e)(1) A reasonable factor other than 

age is a non-age factor that is objectively 

reasonable when viewed from the 

position of a prudent employer mindful 

of its responsibilities under the ADEA 

under like circumstances. 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. 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. 

(2) Considerations that are relevant to 

whether a practice is based on a 

reasonable factor other than age include, 

but are not limited to: 

(i) The extent to which the factor is 

related to the employer’s stated business 

purpose; 

(ii) The extent to which the employer 

defined the factor accurately and 

applied the factor fairly and accurately, 

including the extent to which managers 

and supervisors were given guidance or 

training about how to apply the factor 

and avoid discrimination; 

(iii) The extent to which the employer 

limited supervisors’ discretion to assess 

employees subjectively, particularly 

where the criteria that the supervisors 

were asked to evaluate are known to be 

subject to negative age-based 

stereotypes; 

(iv) The extent to which the employer 

assessed the adverse impact of its 

employment practice on older workers; 

and 

(v) The degree of the harm to 

individuals within the protected age 

group, in terms of both the extent of 

injury and the numbers of persons 

adversely affected, and the extent to 

which the employer took steps to reduce 

the harm, in light of the burden of 

undertaking such steps. 

(3) No specific consideration or 

combination of considerations need be 

present for a differentiation to be based 

on reasonable factors other than age. 

Nor does the presence of one of these 

considerations automatically establish 

the defense. 

* * * * * 

[FR Doc. 2012–5896 Filed 3–29–12; 8:45 am] 

BILLING CODE 6570–01–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

[Docket ID: DOD–2012–OS–0031] 

32 CFR Part 322 

Privacy Act; Implementation; 

Correction 

AGENCY: Office of the Secretary, DoD. 

ACTION: Direct final rule with request for 

comments; correction. 

SUMMARY: On March 16, 2012 (77 FR 

15595–15596), Department of Defense 

published a direct final rule titled 

Privacy Act; Implementation. This rule 

corrects the paragraph identification in 

the added text. 

DATES: This rule is effective on May 25, 

2012. 

FOR FURTHER INFORMATION CONTACT: 

Patricia Toppings, (571) 372–0485. 

SUPPLEMENTARY INFORMATION: On March 

16, 2012, Department of Defense 

published a direct final rule titled 

Privacy Act; Implementation. 

Subsequent to the publication of that 

direct final rule, Department of Defense 

discovered that paragraphs (l)(2) 

through (l)(5) in § 322.7 should have 

read paragraphs (l)(1) through (l)(4). 

Correction 

In the direct final rule (FR Doc. 2012– 

6170) published on March 16, 2012 (77 

FR 15595–15596), make the following 

corrections: 

§ 322.7 [Corrected] 

On page 15596, in § 322.7, in the 

second column, paragraphs (l)(2) 

through (l)(5) are corrected to read 

paragraphs (l)(1) through (l)(4). 

Dated: March 26, 2012. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2012–7596 Filed 3–29–12; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2012–0121] 

RIN 1625–AA87 

Security Zone; USCGC STRATTON 

Commissioning Ceremony, Alameda, 

CA 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary security zone 

in the navigable waters of the San 

Francisco Bay, Alameda, CA within the 

San Francisco Captain of the Port 

(COTP) Zone. The security zone is 

necessary to ensure the safety of the 

USCGC STRATTON commissioning 

ceremony. 

DATES: This rule is effective from 12 

p.m. on March 30, 2012 to 4 p.m. on 

March 31, 2012. 


sroberts on DSK5SPTVN1PROD with RULES