Yesterday, the United States Supreme Court resolved a split among the circuits, holding that the employer has the burden of persuading a fact finder that an employment practice with a disparate impact on older workers does not give rise to age discrimination liability because it is “based on reasonable factors other than age.” Meacham v. Knolls Atomic Power Laboratory, et al.
The Meacham case arose after a reduction in force in which employees were selected for layoff based on managerial assessments of performance, flexibility and critical skills. Of the 31 employees terminated, 30 were over 40 years of age. The Age Discrimination in Employment Act (ADEA) prohibits not only disparate treatment of employees based on age, but also prohibits employment practices that have a disparate impact on older workers. It includes an exception, however, for otherwise prohibited practices that are “based on reasonable factors other than age.” 29 U.S.C. §623(f)(1). An affected employee filed suit under the ADEA, alleging both disparate treatment and disparate impact. The jury found for the plaintiff on the disparate impact claim.
After the Second Circuit affirmed, the Supreme Court vacated and remanded for reconsideration in light of an intervening ADEA decision. On remand, the Second Circuit held that the employees had not carried their burden of persuading the jury that the non-age factors used by the employer were unreasonable. The Supreme Court again vacated and remanded, holding that the plain language of the ADEA, as well as interpretations of other federal statutes, makes it clear that the “reasonable factors other than age” exception is an affirmative defense for which the employer bears the burden of persuasion.
The Court noted, however, that plaintiffs bringing an ADEA disparate-impact claim have the burden to “isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities.”
Click here to read the full opinion.
Keesal, Young & Logan Employment Group
