U.S. Supreme Court Concludes “Reasonable Factors Other than Age” Exemption is an Affirmative Defense for which Employers Defending Disparate Impact Claims Under the ADEA Bear the Burden of Proof


On June 19, 2008, in Meacham v. Knolls Atomic Power Laboratory, the U.S. Supreme Court held that an employer defending a disparate-impact claim under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §621 et seq., bears the burden of persuasion (that is, the burden of persuading the trier of fact of the defense’s merit) when asserting the “reasonable factors other than age” (“RFOA”) affirmative defense under §623(f)(1). Citing prior cases under the Fair Labor Standards Act and the Equal Pay Act, the Court held that Congress intended to place the burden of proving a statutory exemption to ADEA liability, such as the RFOA defense, on the party asserting the defense.


What This Means for Employers

Although the U.S. Supreme Court’s decision is consistent with longstanding Ninth Circuit precedent, it is a good reminder to employers that they must be able to articulate and prove the reasonableness of their policies when those policies have been proved to have a disparate impact on older workers. The Meacham opinion acknowledged that the burden on employers can be significant, but that it might not be as onerous as employers fear. Specifically, the Meacham court opined that “certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group.”

In addition, the Court made clear that plaintiffs cannot prevail merely by pointing to a generalized policy that leads to a disparate impact. Instead, employees still must isolate and identify the specific practices that are allegedly responsible for any proven statistical disparities between an adverse impact on older workers and an adverse impact on younger workers.

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