On June 19, 2008, the Supreme Court held that the employer bears the both the burden of production and the burden of persuasion in raising as an affirmative defense to an ADEA disparate impact claim that its decision was based on a reasonable factor other than age (RFOA). Meacham v. Knolls Atomic Power Lab., No. 06-1505. In Meacham, the employer conducted a reduction in force (after more than 100 employees accepted voluntary buyouts) in which 30 of the 31 involuntarily reduced positions were held by an employee over the age of 40. Managers had been instructed to evaluate their staffs by four factors: years of service, "performance," "flexibility," and "critical skills." Twenty-eight of the involuntarily reduced employees sued, raising both disparate-treatment (i.e., intent) and disparate-impact (i.e., result) claims under the ADEA and state law, alleging that the defendant employer "designed and implemented its workforce reduction process to eliminate older employees and that, regardless of intent, the process had a discriminatory impact on ADEA-protected employees." In the ensuring class action, the plaintiffs’ expert opined “that results so skewed according to age could rarely occur by chance;4 and that the scores for "flexibility" and "criticality," over which managers had the most discretionary judgment, had the firmest statistical ties to the outcomes.”
In construing the ADEA statute, the Court recognized that the RFOA defense was listed along another affirmative defense for bona fide occupational qualification. The employer has always held the burden of proof and persuasion for the BFOQ defense. Similarly, under the FLSA and EPA, the employer has born the burden of proof and persuasion on the “reasonable factor other than sex” affirmative defense. While it might seem reasonable to assume a different interpretation of the burden in a disparate treatment case – since age is a factor in the prima facie case – and the RFOA defense seems superfluous, in the disparate treatment case (where age discrimination exists in fact when the unlawful treatment is not based on age), the RFOA defense is particularly applicable:
“[I]n 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"; so action based on a "factor other than age" is the very premise for disparate-impact liability in the first place, not a negation of it or a defense to it. The RFOA defense in a disparate-impact case, then, is not focused on the asserted fact that a non-age factor was at work; we assume it was. The focus of the defense is that the factor relied upon was a "reasonable" one for the employer to be using. Reasonableness is a justification categorically distinct from the factual condition "because of age" and not necessarily correlated with it in any particular way: a reasonable factor may lean more heavily on older workers, as against younger ones, and an unreasonable factor might do just the opposite.”
“Here is what is so strange: as the Government says, "[i]f disparate-impact plaintiffs have already established that a challenged practice is a pretext for intentional age discrimination, it makes little sense then to ask whether the discriminatory practice is based on reasonable factors other than age." Brief for United States as Amicus Curiae 26 (emphasis in original). Conversely, proving the reasonableness defense would eliminate much of the point a plaintiff would have had for showing alternatives in the first place: why make the effort to show alternative practices with a less discriminatory effect (and besides, how would that prove pretext?), when everyone knows that the choice of a practice relying on a "reasonable" non-age factor is good enough to avoid liability?14 At the very least, developing the reasonableness defense would be substantially redundant with the direct contest over the force of the business justification, especially when both enquiries deal with the same, narrowly specified practice. It is not very fair to take the remark about Wards Cove in City of Jackson as requiring such a wasteful and confusing structure of proof.”
Regardless of the strangeness of the result, the Court reiterated that the plaintiff still bears the burden of producing enough evidence to show that age discrimination has resulted from a specific employment practice which is responsible for statistical disparities against older workers. In the final analysis, the Court acknowledges that “there is no denying that putting employers to the work of persuading factfinders that their choices are reasonable makes it harder and costlier to defend than if employers merely bore the burden of production; nor do we doubt that this will sometimes affect the way employers do business with their employees.” Moreover, “as the outcome for the employer in City of Jackson shows, "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."
Insomniacs can read the full decision at http://www.supremecourtus.gov/opinions/07pdf/06-1505.pdf. NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
