In the Fall 2010 issue of the ABA Journal of Labor Employment Law, authors Rozycki & Sullivan, argue that disparate claims under the Age Discrimination in Employment Act (ADEA) continue to face an uphill battle, even with the U.S. Supreme Court's decisions in Smith v. City of Jackson, 544 US 228 (2005), and Meacham v. Knolis Atomic Power Laboratory, 128 S.C. 2395 (2008).
In Jackson, the Supreme Court recognized a defense to ADEA claims that the employment action was based on a reasonable factor other than age ("RFOA defense"), and in Meacham the Court held that defense is an affirmative one for which the employer bears the burdens of both production and persuasion.
In Jackson, the Supreme Court recognized a defense to ADEA claims that the employment action was based on a reasonable factor other than age ("RFOA defense"), and in Meacham the Court held that defense is an affirmative one for which the employer bears the burdens of both production and persuasion.
These rulings can be compared to standards in some other employment matters. For example, in some other employment discrimination cases, an employer may have to establish the more strict "'business necessity' ...which asks whether there are other ways for the defendant to achieve its goals that do not result in a disparate impact on a protected class,"but may only bear the burden of production. However, in other employment discrimination cases, the employer usually only bears the burden of production as to its affirmative defense.
Rozycki & Sullivan note that in subsequent cases, plaintiffs are usually failing to establish a prima facie case, because they "cannot meet the nontrivial burden to isolate and identify the specific employment practice responsible for the observed statistical disparity." However, the authors argue that even when plaintiffs make a prima facie case, the employers are usually able to easily meet the RFOA defense standard..
Apparently, the EEOC has since 2008 been contemplating bringing its rule's into alignment with the new case law. However, the 2010 version of proposed rules would seek to reinsert a business necessity component, by asking "[w]hether other options were available and the reasons the employer selected the option it did." See 75 Fed. Reg. 7218. Rozycki & Sullivan argue the new rules would also "seek to impose a high burden on employers who rely on subjective decision making," in its identification of criteria for determining if a factor is "other than age." Id. (inquiring into extent of unchecked supervision, adequate training in RFOA, etc.)
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