The 'Reasonable Factor Other Than Age' Defense: How NJ Employers Justify Decisions That Hurt Older Workers

Age bias is not always obvious. Instead of direct comments, employers may say an older worker was selected because of performance issues, a restructuring, attendance problems, or productivity standards. 

Many workers who reach out to our attorneys at Brandon J. Broderick describe layoffs, demotions, or other employment decisions that their employers say were based on business needs. This explanation doesn’t resolve the issue. Courts examine the employer's stated reason and how consistently it was applied.

An employer can avoid liability for disparate impact only by showing that the employment practice was based on a reasonable factor other than age.

This article explains how the "reasonable factor other than age" defense works, why employers rely on it, what evidence courts examine, and when to consult an employment lawyer in New Jersey. 

How New Jersey Handles Reasonable Factors Other Than Age

Older employees remain a substantial part of today’s workforce. The Bureau of Labor Statistics reported that 19.1% of people age 65 and older worked or looked for work in 2025. As workers stay employed longer, neutral policies deserve careful review.

Age discrimination doesn’t always begin with a manager saying an employee is too old. It also appears when an employer applies the same rule to everyone, but it harms certain workers at a higher rate. For example, team-building activities like long team hikes could have a greater impact on older employees even though the rule applies to everyone. 

Federal law refers to this type of claim as disparate impact. The Age Discrimination in Employment Act, or ADEA, prohibits an employer from limiting employees’ opportunities because of age. It protects workers older than 40 and covers private employers with at least 20 employees, as well as state and local government employers, employment agencies, and labor organizations.

These claims differ from intentional bias. A worker alleging disparate treatment argues that age influenced the decision. An employee alleging disparate impact instead challenges a policy applied to a group and doesn’t need to prove a discriminatory motive. This difference controls when an employer gets to use the reasonable factor other than age defense. 

The EEOC’s RFOA regulation states that the defense applies to disparate-impact claims, not intentional bias. An employer also cannot rely on RFOA when its policy directly uses age as a limit.

Workers must first identify the specific policy that caused the disparity before an employer has to prove its defense. Many of the age discrimination cases our attorneys at Brandon J. Broderick review involve claims that a restructuring favored younger workers, but the law requires more than that. Employees must show that a particular policy, such as a test, scoring formula, compensation rule, or other workplace practice, produced a significant difference. 

New Jersey employees have an option when choosing the comparison group. In Karlo v. Pittsburgh Glass Works, the Third Circuit held that workers could show a policy significantly harmed employees age 50 and older compared with younger employees. Favorable results for employees in their early 40s should not hide heavier losses among workers in their 50s or 60s.

When the RFOA Defense Works in New Jersey Age Discrimination Claims 

Once workers identify a neutral practice and show a significant disparity, the employer bears the burden of proving RFOA. It must produce supporting evidence and persuade the judge or jury. Calling a decision sensible or consistent with company policy doesn’t complete the defense.

An RFOA is a non-age factor that looks objectively reasonable from the position of a careful employer aware of its ADEA duties. According to the EEOC’s RFOA guidance, the practice must reasonably serve a legitimate business purpose based on what the employer knew or should have known. A sound goal doesn’t excuse a careless method.

EEOC regulations identify five considerations that help show whether a policy was reasonable:

• How closely the factor served the stated business purpose. An employer should explain why it selected the test, score, or qualification and how it helped reach a real business goal. A broad claim about improving efficiency says little unless the chosen factor measures something related to that goal.
• How clearly the employer defined and applied the factor. Written criteria, consistent scoring, and records supporting the ratings strengthen the defense. If one supervisor treats “productivity” as completed work while another treats it as attitude, employees are not being judged by the same standard.
• How much the employer limited subjective discretion. Open-ended standards leave room for stereotypes. Words such as “flexibility,” “energy,” “future potential,” and “technology skills” require definitions tied to the work. The same is true for hiring or evaluation language that favors a "digital native" or a "recent graduate," which reflect stereotypes rather than business needs. Training and objective examples help keep personal assumptions from influencing decisions. 
• How closely the employer examined the effect on older workers. Federal law does not require a formal study for every decision. An employer with age and layoff data has a harder time explaining why it ignored an obvious disparity.
• How much harm the policy caused and what the employer did to reduce it. Reasonableness depends on the number of workers affected, the seriousness of the loss, and the difficulty of using a less harmful method. Ignoring an easy adjustment that preserves the business goal and reduces the disparity weighs against the defense.

The RFOA defense is easier to prove than the business necessity defense used in Title VII disparate impact cases. One issue our legal team often discusses with clients is that the ADEA sets a different standard. The five RFOA factors are the guideposts that help courts decide whether the employer acted reasonably. 

What Makes an RFOA Defense Stronger or Weaker Under the ADEA

Two U.S. Supreme Court decisions explain the RFOA defense. In Smith v. City of Jackson, older police officers challenged a plan giving larger percentage raises to lower ranks. The Court accepted the city’s explanation that it wanted to match nearby departments’ pay and improve retention. Other approaches existed, but the one chosen was not unreasonable.

Meacham v. Knolls Atomic Power Laboratory involved a reduction in force in which 30 of 31 employees selected were at least 40. Managers scored performance, flexibility, and needed skills. The Supreme Court held that the employer had to prove those factors were reasonable. Business judgment was not self-proving because the criteria avoided age.

Mass layoffs place the defense under the greatest pressure. Salary, performance, location, and needed skills serve legitimate goals in the right setting. Problems develop when an employer mixes objective information with vague ratings, gives managers little instruction, or changes the method during the process. Selecting higher-paid employees deserves close review because pay rises with experience. Targeting the average higher cost of older workers as a group is not an RFOA.

Physical tests provide a good example. A test tied to the actual duties of the job and applied consistently is more likely to support an RFOA defense. The same idea applies when employers use data from workplace fitness trackers, wearables, and other employee monitoring tools. If the measurements reflect real job requirements, they are easier to justify. If they go beyond the job duties, the employer's position becomes weaker. 

When Subjective Ratings Lead to Age Disparities 

Employers do not have to eliminate judgment from employment decisions. Trouble starts when supervisors receive no shared definition and rely on impressions and stereotypes. Describing an older worker as resistant to change without examples says nothing about performance. The same applies to assumptions about retirement, availability, energy, or technology.

Subjective ratings are easier to defend when they are backed by objective records. Training results, completed projects, error rates, documented software use, and similar evidence provide a stronger basis than vague impressions. Performance ratings determine bonus pay, merit increases, or other compensation, and unsupported evaluations contribute to age or pay discrimination claims. Ignoring these patterns also makes it more difficult for an employer to show reasonable care. 

Automated screening does not remove employer responsibility. Software using graduation dates, experience limits, or other age-related information could repeat the problem on a larger scale. New Jersey’s 2025 guidance on algorithmic discrimination states that the NJLAD applies when automated tools produce biased results. Employers still need to know what their tools measure.

Challenging an RFOA Defense Under Federal and New Jersey Law

Workers do not defeat RFOA by suggesting another approach. Records from the decision period often answer it better than an explanation after the complaint.

Useful records include:

• The policy and its instructions: Keep test descriptions, layoff notices, evaluation forms, and written criteria. Different versions show when scoring rules changed.
• Scores and comparison information: Record who made the decision, which employees were considered, and how qualifications were measured. Disparate impact addresses a group, not one result.
• Communications about the purpose: Emails, texts, meeting notes, and presentations might reveal a difference between the stated goal and the chosen method.
• Age-related language: Comments about retirement, energy, adaptability, technology, or “new blood” support an intentional claim and cast doubt on neutral judgment.

Federal and state claims should receive separate treatment. The New Jersey Law Against Discrimination, or NJLAD, prohibits bias and refers to decisions justified by “lawful considerations other than age.” 

New Jersey’s protection isn’t limited to people age 40 and older. The New Jersey Supreme Court confirmed in Bergen Commercial Bank v. Sisler that the law also protects younger workers from age discrimination.

If you believe age played a role in a workplace decision, contact us today to discuss your situation and learn what legal options may be available.