In Disparate Impact Cases (Age Discrimination), Employers Relying on Reasonable Factors Test Carry the Burden

In Meacham v. Knolls Atomic Power Laboratory, (2008), the Supreme Court resolved issues related to the burden of proof that must be met when defendants rely on the statutory “reasonable factors other than age” defense (“RFOA”) age discrimination (ADEA) disparate impact cases. In Meacham, former employees of a government contractor who were terminated as part of a company-wide “reduction in force” brought suit alleging disparate treatment and disparate impact claims under federal and state law. Employer asserted the RFOA defense to ADEA, which provides: “[i]t shall not be unlawful for an employer…to take any action otherwise prohibited …where the differentiation is based on reasonable factors other than age…” § 623(f)(1). Second Circuit Court of Appeal ruled in favor the employer, holding that the employer had articulated reasonable factors except age to support its decision and that the plaintiffs had failed to prove that those non-age factors were “unreasonable.” According to the court it was the employees who had the burden of proof as to the reasonableness of the non-age factors. The Supreme Court disagreed and reversed the Second Circuit’s decision, ruling that the RFOA is an affirmative defense hence the defendants must carry the burden and not the plaintiffs. As a result when employees produce statistical evidence supporting a disparate impact case, employers relying on RFOA must convince the fact-finder that its non-age factors were reasonable.