"Reasonable Factors" -- Who Has the Burden of Proof in ADEA Cases?

The ADEA prohibits age discrimination in employment.  At the same time, 29 U.S.C. section 623(f)(1) allows "differentiation" between persons in different age groups if that differentiaion is based on "reasonable factors other than age."  Does the employer have the burden of proving that its "differentiation" was based on reasonable, non-age based factors, or does the employee have the burden of showing it was not?  This issue is now before the US Supreme Court on cert petition, and the solicitor general has urged the court to grant cert in Meacham v. Knolls Atomic Power Lab.  A copy of the federal government’s amicus curiae is available here.

Clifford Meacham and other employees of Knolls Atomic Power Laboratory were subjected to an involuntary reduction of force. The company had developed a three part process for determining which employees to terminate. While age was not an explicit part of the process, 30 of the 31 employees terminated were over the age of 40. At the time of the layoff, only 60% of the work force was over 40 years old. Meacham and other employees brought suit for age discrimination under the ADEA. At trial, the jury found that the plaintiffs established disparate-impact.

The defendant appealed and the Second Circuit Court of Appeals affirmed the trial court’s decision.  In this first appeal, the court evaluated disparate-impact under the framework described in Wards Cove Packing Co. v. Atonio, (1989) 490 U.S. 642. In affirming, the court found that the defendant could have designed an involuntary reduction in force that was less vulnerable to bias.

Shortly after the employer filed a cert petition, the Supreme Court issued its decision in Smith v. City of Jackson (2005) 544 U.S. 228. The Supreme Court then granted cert in Meacham, vacated the judgment and remanded it for further proceedings based on Smith.

On remand the Second Circuit vacated the original judgment and instructed the district court to enter judgment for Knolls. The appeals court held that based on Smith, the plaintiff bears the burden of persuasion that the employer’s justification in unreasonable.  It is the plaintiffs’ appeal of this decision which is currently before the Court on a cert petition.

In its amicus brief the federal government is asking the Supreme Court to grant cert to determine whether the employee or the employer bears the burden of persuasion in establishing "reasonable factors other than age" under section 623 (f)(1).

The Ninth Circuit addressed this issue in 1983 in the case Criswell v. Western Airlines, Inc. (9th Cir. 1983) 709 F.2d 544. In Criswell the Ninth Circuit held that the employer, not the employee, bears the burden of persuasion in establishing reasonable factors other than age. Therefore, if the Supreme Court does grant cert and affirms the holdings in Meacham  it's holding would likely affect application of the ADEA in California and the 9th Circuit.

Additional discussion of the Meachum case can be found at Scotusblog.

                                                                --Michael Sachs

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