Supreme Court considers who bears burden in age discrimination claim
It is not necessarily unlawful for an employer to adopt policies that put older workers at a disadvantage. Such policies pass muster under the Age Discrimination in Employment Act (ADEA) as long as they are based on “reasonable factors other than age” (RFOA). The question in a Supreme Court argument on Wednesday was whether the employer has to prove that such “reasonable factors” exist, or whether it is up to the employee who has brought a lawsuit to show that they do not. The burden of proof makes a substantial difference in any lawsuit, although statutes rarely specify which side bears it. For federal laws against race and sex discrimination in the workplace, the Supreme Court has filled the gap by developing fairly elaborate procedures that plaintiffs and defendants must follow. But for age discrimination, the rules have remained murky, leaving the lower courts in confusion over how to handle this rapidly growing category of workplace discrimination claims. The argument the justices heard on Wednesday was in a case brought by two dozen workers at a federal research laboratory in upstate New York. Carrying out a reduction in force, the employer, Knolls Atomic Power Laboratory, which is owned by the Lockheed Martin Corporation, terminated 31 employees after using a set of guidelines to evaluate workers’ skills and amenability to retraining. All but one dismissed employee was over 40, the age at which the protections of the federal age discrimination law begin to apply.
In the Supreme Court, the Bush administration supported the employees’ appeal, Meacham v. Knolls Atomic Power Laboratory, No. 06-1505. Daryl Joseffer, an assistant to the solicitor general, told the justices that the inclusion in the statute of “reasonable factors other than age” as an exception to liability showed that Congress was offering employers a defense, the existence of which they would have to prove. “But even if the text wasn’t so clear, one would logically put it on the employer,” Mr. Joseffer continued. “All else being equal, the employer is in a better position to explain the reasonableness of its very own business practice.” The employees’ lawyer, Kevin K. Russell, made a similar point, and met with resistance from both Justice Anthony M. Kennedy and Chief Justice John G. Roberts Jr. “That doesn’t seem a very compelling case,” the chief justice said, because in pretrial discovery, employees’ lawyers could question company officials about their rationale. The employer’s lawyer, Seth P. Waxman, said the court should keep in mind the difference between age discrimination and other kinds of workplace discrimination. Policies that have a differential impact on the basis of race or sex can rarely be justified as reasonable, he said, while age, on the other hand, “often does correlate with reasonable employment factors.” Consequently, Mr. Waxman continued, “the presumption actually is quite weak” that a challenged policy amounts to improper age discrimination, and it made sense for plaintiffs to have to prove that there was no legitimate justification. The justice most skeptical of Mr. Waxman’s argument was Justice Ruth Bader Ginsburg, who questioned him closely both on his legal theory and on the facts of the case.
Source: New York Times, 4/24/08, By Linda Greenhouse
[Editor’s Note: The transcript of the arguments is below, as is an Education Week article discussing the implications of the case for schools. NSBA submitted an amicus brief addressing that point, available at the third link. The U.S. Equal Employment Opportunity Commission (EEOC) recently issued proposed regulations that would answer the question posed in the case as part of an update needed to reflect the U.S. Supreme Court’s ruling in Smith v. City of Jackson, 544 U.S. 228 (2005). In that case, the Court ruled that “disparate impact” claims can be brought under the ADEA but that liability is precluded when the impact is attributable to an RFOA. Current EEOC regulations prohibit an employment practice that has a disparate impact on individuals age 40 or over unless the practice is justified as a “business necessity.” The proposed regulations also would specify that the employer has the burden of showing that an RFOA exists factually. Comments are due May 30, 2008.]
Transcript in Meacham v. Knolls Atomic Power Laboratory
Education Week, 4/24/08, By Mark Walsh
NSBA School Law pages on NBSA brief in Meacham
73 Fed. Reg. 16,807 (Mar. 31, 2008)