EMPLOYMENT AND LABOR NEWS

                                                                             July, 2008

                                                           Mickey Busca, editor

This month's newsletter summary of an important U.S. Supreme Court case was prepared by Marshall, "Chip," Segar, a third year law student at Massachusetts School of Law, who is working with me this summer.

U.S. SUPREME COURT AFFIRMS "BURDEN OF PROOF" STANDARD IN THE ADEA.

      On June 19, 2008, the U.S. Supreme Court, in a near unanimous case, affirmed the language in the Age Discrimination in Employment Act (ADEA) by holding that an employer who is defending a disparate impact claim under the ADEA bears the burden of production and the burden of persuasion in claiming that their actions against the employee were "reasonable factors other than age."  (RFOA).

      In this case, Meacham et al v. Knolls Atomic Power Laboratory, et al, a nuclear power company was undergoing a work force reduction.  As such, management tasked its supervisors to review their subordinates' performance.  As a result of the review, 30 of the 31 persons laid off were over the age of 40.  Meacham and the others who were laid off filed suit in federal court claiming, among other things, that the factors that were used to evaluate the employees had to have been skewed by age rather than performance so as to yield such a lop sided/disparate impact result.

      In most areas of law, the burden of proof is placed upon the shoulders of the person making the claim, or in this case the person filing the law suit.  However, on some occasions, and when certain defenses to a suit are made, the burden is shifted from the "plaintiff" to the "defendant."

      Under the ADEA, a defendant can claim that its actions that caused the disparate impact were done for "reasonable factors other than age" (RFOA).  The company argued that the factors in its evaluation process were based upon "bona fide occupational qualifications" (BFOQ) and age is an excepted occupational qualification.

      It should be noted that the Court analyzed this case under a disparate impact standard rather than a disparate treatment standard.  The company did not treat Meacham differently, however, its practice of evaluating employees did have a disparate impact.

      The Court acknowledged that both RFOA and BFOQ are "affirmative defenses" to claims made under the ADEA.  However, the Court said that, " the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on the one who claims its benefits ...."  

      The case was sent back to the lower court for further review in light of the shifted burden of proof.

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