A Supreme Court Victory for Older Workers

The New York Times
June 20, 2008

By LINDA GREENHOUSE
WASHINGTON — The Supreme Court ruled for older workers Thursday in a closely watched age discrimination case, placing on employers the burden of proving that a layoff or other action that hurts older workers more than others was based not on age but on some other “reasonable factor.”
The 7-to-1 decision overturned a ruling by the federal appeals court in New York, which said employees had the burden of disproving an employer’s defense of reasonableness.
The case was brought by 28 employees who lost their jobs during cutbacks at a federal research laboratory in upstate New York. All but one of the employees who were laid off were at least 40, the age at which protections begin under the federal Age Discrimination in Employment Act.
The issue in the case, while technical, is important for the litigation of age discrimination cases in which an employer’s action or policy that appears neutral on its face has a disparate impact on older workers. David Certner, the chief legislative counsel for AARP, praised the decision and said it would prove “vital to the creation and maintenance of a workplace that is fair and free of age bias.”
From a broader perspective, this decision, coming near the end of the Supreme Court’s term, completed a five-for-five sweep for employees’ rights in workplace discrimination cases that was little short of astonishing, given how far the court had appeared to be tilting toward business under Chief Justice John G. Roberts Jr. By comfortable margins, the court interpreted federal antidiscrimination statutes broadly to enable employees to overcome procedural hurdles and to pursue a category of claims not fully detailed in the statutes themselves.
Business lawyers, while pointing to victories in other parts of their agenda, were quick to acknowledge that the court’s apparent turnabout in the employment area was a big surprise.
“It’s been a clean sweep,” said Robin S. Conrad, executive vice president of the National Chamber Litigation Center, which handles Supreme Court cases for the United States Chamber of Commerce.
A year ago, Ms. Conrad proclaimed the court’s 2006-7 term “our best term ever.” Now “it’s back to the drawing board,” she said in an interview, adding, “To achieve our objectives, we’ll have to battle it out case by case.”
The National Federation of Independent Business, which represents small businesses, said the decision Thursday “will make it much harder for small-business owners to defend themselves against allegations of violations of the Age Discrimination in Employment Act,” particularly when it comes to responding to “market changes and new technology without fearing that any real change in their business plan will prompt a baseless lawsuit.”
In the case on Thursday, Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, the employer was faced with laying off some employees after a voluntary buyout failed to produce the desired staff reduction. Managers were instructed to rate employees for how “flexible” and “retrainable” they were. Of the 31 who were eventually laid off, 30 were at least 40 years old.
The age discrimination law provides that an employment action that would be “otherwise prohibited” is lawful if “the differentiation is based on reasonable factors other than age.” The question in the case was what happens once an employer invokes this defense: does the employer have to prove, or do the plaintiffs have to disprove, the existence of the reasonable non-age factors?
The laid-off Knolls Atomic workers won their case before a jury, but the United States Court of Appeals for the Second Circuit overturned the verdict on the ground that the employees had not refuted the reasonableness of the laboratory’s selection process.
In his majority opinion overturning the appeals court’s decision, Justice David H. Souter said the structure of the statute made it clear that the defense was “entirely the responsibility of the party raising it.” He said that by using the phrase “otherwise prohibited,” Congress meant to offer employers “an excuse or justification for behavior that, standing alone, violates the statute’s prohibition,” but only if they could prove their entitlement to the defense. [To read the entire article, go to: http://www.nytimes.com/2008/06/20/washington/20scotus.html?_r=1&th&emc=th&oref=slogin ]