Last week the United States Supreme Court may have made it easier for plaintiffs to succeed in age discrimination cases by clarifying that the employer has the burden of persuading the fact-finder of the reasonableness of “reasonable factors other than age” justifying an employment decision that has a disparate impact on older workers. In Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, the employer laid of 31 employees based on the scores on performance tests administered by supervisors. Because the scores contained a subjective element, they were identified as a factor that could have accounted for the test results’ bias against older employees. (30 out of the 31 laid off employees were over 40.)
The result of the Supreme Court’s decision is to place more power in the jury’s hands to evaluate the reasonableness of the practice identified as having a disparate impact on older employees. In other words, if an employer takes an action having an adverse impact on older workers, it is not enough for the employer to say that that action had nothing to do with age. Rather, the employer must persuade the jury that the action was reasonable.