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Employer Has Burden Of Proof In Age Cases, Says High Court
June 19, 2008, By Arthur D. Postal, NU Online News Service [Excerpt]
The Supreme Court ruled today that it is an employer’s responsibility to prove that an employee was laid off for
reasons other than age.
Interpreting the Age Discrimination in Employment Act of 1967, the court held that an employer bears “both the
burden of production and the burden of persuasion” for the “reasonable factors other than age.” The decision
was handed down in Meacham vs. Knolls Atomic Power Laboratory, 06-1505.
The case dealt with whether the burden of proof will rest with employees who file suit claiming age bias, or with
the employer letting them go.
Paul Mickey, a partner and employment practices specialist at Steptoe & Johnson here in Washington, said he
is advising that, as a result of this decision, “it is vital for an employer taking steps that may disproportionately
affect older workers--such as implementing a reduction-in-force--to be prepared to support its actions with solid
analysis and documentation, so as to meet its burden of persuading the judge or jury that it was motivated by
good business justifications and not by age bias."
The case that was decided involved Knolls Atomic Power Laboratory, a government-owned naval research
facility. The justices, by 7-1, said employers defending themselves in certain age discrimination cases must
provide convincing evidence that factors other than age were the basis for their decisions involving a worker.
At the Knolls research facility there were involuntary layoffs in 1996 that were based on number of years on the
job, performance and skills.
Justice David H. Souter said the “text and structure of the reasonable factors other than age” affirmative
defense under the ADEA showed that Congress meant to create an “affirmative defense for which the burden
of persuasion falls on the employer.” He said earlier court precedents made clear that a disparate-impact claim
under the ADEA must isolate and identify “the specific employment practices that are allegedly responsible for
any observed statistical disparities.”
Justice Souter said, “This is not a trivial burden, and it ought to allay some of the concern that recognizing an
employer’s burden of persuasion on an RFOA [reasonable factor other than age] defense will encourage strike
suits or nudge plaintiffs with marginal cases into court; but in the end, such concerns have to be directed at
Congress, which set the balance by both creating the RFOA exemption and writing it in the orthodox format of
an affirmative defense.”
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