The employer 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. 

Case below:  Meacham v. Knolls Atomic Power Laboratory (2nd Cir 08/14/2006) (2-1) 
Official docket sheet 
Certiorari granted January 18, 2008  
[Justice Breyer has taken no part in the consideration or decision of this petition.] 
Oral argument: April 23, 2008.   [Transcript]  [The Solicitor General participates in oral argument as amicus curiae on behalf of Petitioners.] 

Question presented:  

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: