[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1625.7]

[Page 310]
 
                             TITLE 29--LABOR
 
                               COMMISSION
 
PART 1625--AGE DISCRIMINATION IN EMPLOYMENT ACT--Table of Contents
 
                       Subpart A--Interpretations
 
Sec. 1625.7  Differentiations based on reasonable factors other than age.

    (a) Section 4(f)(1) of the Act provides that

    * * * it shall not be unlawful for an employer, employment agency, 
or labor organization * * * to take any action otherwise prohibited 
under paragraphs (a), (b), (c), or (e) of this section * * * where the 
differentiation is based on reasonable factors other than age * * *.

    (b) No precise and unequivocal determination can be made as to the 
scope of the phrase ``differentiation based on reasonable factors other 
than age.'' Whether such differentiations exist must be decided on the 
basis of all the particular facts and circumstances surrounding each 
individual situation.
    (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.
    (d) When an employment practice, including a test, is claimed as a 
basis for different treatment of employees or applicants for employment 
on the grounds that it is a ``factor other than'' age, and such a 
practice has an adverse impact on individuals within the protected age 
group, it can only be justified as a business necessity. Tests which are 
asserted as ``reasonable factors other than age'' will be scrutinized in 
accordance with the standards set forth at part 1607 of this title.
    (e) When the exception of ``a reasonable factor other than age'' is 
raised against an individual claim of discriminatory treatment, the 
employer bears the burden of showing that the ``reasonable factor other 
than age'' exists factually.
    (f) A differentiation based on the average cost of employing older 
employees as a group is unlawful except with respect to employee benefit 
plans which qualify for the section 4(f)(2) exception to the Act.