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Age discrimination disparate impact case heads to Supreme Court
December 22, 2007 by Ross Runkel at LawMemo
Will the US Supreme Court grant certiorari in Meacham v. Knolls Atomic Power Laboratory? [Case details] Probably, I think. Earlier this week the US Justice Department filed a brief arguing that certiorari should be granted.
The Meacham case presents the legal issue of whether it's the plaintiffs or the defendant that bears the burden of proof on an important aspect of a disparate impact age discrimination case: proving (or disproving) that the employer's decision "is based on reasonable factors other than age." That's the RFOA exception.
Knolls laid off employees during an involuntary reduction in force. Of the 31 employees laid off, 30 were over 40 years old. The workforce as a whole was 60% over 40.
Some of the laid off employees sued under the Age Discrimination in Employment Act (ADEA), using a disparate impact theory. A jury found in favor of the plaintiffs. The 2nd Circuit (by 2-1 vote) vacated the judgment of the district court and remanded the case with instructions to enter judgment for the employer. The 2nd Circuit majority held that it is the plaintiffs' burden to prove that the employer's justification is unreasonable. The dissenting judge would look at the RFOA defense as an affirmative defense as to which the employer would have the burden of persuasion.
The government's brief said:
The court of appeals held that plaintiffs raising a disparate-impact age discrimination claim bear the burden of proof with respect to the ADEA’s RFOA exception. That ruling is at odds with the text of the pertinent statutory provision, the decisions of other circuits, and agency regulations. In addition, the burden of proof on this issue is of threshold and recurring importance in ADEA disparate-impact cases. This Court’s review of the first question presented is therefore warranted.
The questions presented by the petition (filed by the losing plaintiffs):
The Age Discrimination in Employment Act (ADEA) prohibits employment practices that have an unjustified disparate impact on older workers, Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), but also provides that it “shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). The questions presented are:1. Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the “reasonable factors other than age” defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission.
2. Whether respondents’ practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a “reasonable factor other than age” as a matter of law.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
