Recent Publications
June 26, 2008
Supreme Court Decision Increases Age Discrimination Risk.
William
F.
Becker,
Daniel
Smith,
Joy
Stransky
You must reduce your workforce. You want to retain your most productive workers. Without careful legal analysis, these two lawful objectives can lead to unexpected age discrimination exposure. This is the lesson of the June 19, 2008 decision of the U.S. Supreme Court in
Meacham, et al. v. Knolls Atomic Power Laboratory.
The employer in
Meacham asked its supervisors to rate employees on qualities like “performance,” “flexibility,” and “critical skills.” None of the criteria related to age. Yet, if these “neutral” criteria cause more older workers than younger workers to be laid-off, the Supreme Court held the
employer bears the burden of proving it based its decision on “reasonable factors other than age,” (RFOA).
Just three years ago, the Court found age discrimination where a company practice, which applies to all employees
regardless of age, nevertheless adversely impacts older workers. For example, a hiring test that measures computer skills may result in fewer older workers being hired.
The Age Discrimination in Employment Act (ADEA), however, offers employers some exemptions for practices that adversely impact older workers. One of these exemptions protects employers who are using “reasonable factor(s) other than age,” (RFOA). In
Meacham, the Supreme Court held that the burden of proving the RFOA defense falls upon the employer.
The
Meacham decision also sounds a warning to employers who use critical skills assessments. Critical skills assessments (“CSA”) are often utilized to provide an objective basis for lay-offs and other employment actions. Employers should be aware that the plaintiffs’ bar may use expert testimony to show that the CSA rating process itself is discriminatory. For example, in
Meacham, the Plaintiff presented statistician testimony that the results of the CSA were skewed according to age, especially in those categories that permitted the most subjective rating of employees.
The Court’s decision in
Meacham highlights the importance of sophisticated statistical and legal review of any CSA process used in a layoff. For further information, please contact any of the Labor & Employment attorneys at Frost Brown Todd LLC.