Labor & Employment Law

Age discrimination

By Harvey Randall, Esq.

Age discrimination
Source: NSBA Legal Clips; Free subscriptions available at www.nsba.org/legalclips. Reproduced with permission. Copyright © 2008, National School Boards Association. All rights reserved.

NSBA has submitted an amicus brief to the U.S. Supreme Court in Meacham v. Knolls Atomic Power Laboratory, No. 06-1505. The case involves a challenge to an employer's involuntary reduction in force (RIF) alleging that the action violated the federal Age Discrimination in Employment ACT (ADEA) because it had an unjustified disparate impact on older employees. A divided panel of the U.S. Court of Appeals for the Second Circuit (NJ, NY, VT) held that there was insufficient evidence to sustain a jury's verdict for the employees, because the employees had failed to sustain their burden of disproving that the employer's conduct and resulting disparate impact were based on nondiscriminatory "reasonable factors other than age" permitted under the ADEA. The issue now before the Supreme Court is whether an employee alleging disparate impact under the ADEA in fact bears the burden of persuasion on the employer's "reasonable factors other than age" defense. Some other circuit courts and a regulation of the U.S. Equal Employment Opportunity Commission disagree with the Second Circuit on this point.

Arguing in support of the employer, NSBA contends that the test under the ADEA for an employer decision that has a disparate impact is not whether the decision was a "business necessity" and that the ADEA does not place on employers the legal burden of demonstrating that common and necessary employment criteria are reasonable. "To shift the burden to school districts," the brief argues, "would undermine a variety of employment practices critical to the success of America's schools." The brief, written pro bono by Maree F. Sneed, John W. Borkowski, Audrey J. Anderson, Thomas B. Leary, and Gil A. Abramson of the Washington, D.C. firm of Hogan and Hartson LLP, cites the potential implications of the Court's ruling for critical employment challenges confronting school districts, including budgetary constraints, requirements for "highly qualified" teachers and equity in assignments of teachers to schools serving disadvantaged students, restructuring of schools, and incentive pay systems. Oral arguments in the case will be heard this Wednesday, April 23, 2008.

NSBA brief
Meacham v. Knolls Atomic Power Laboratory, 461 F.3d 134 (2d Cir. 2006)

Full post as published by New York Public Personnel Law on April 21, 2008 (boomark / email).