Job Discrimination Safeguards at Risk Again: Meacham v. Knolls Atomic Power Laboratory
by Simon Lazarus and Harper Jean Tobin, attorneys with the National Senior Citizens Law Center
On April 23, the Supreme Court will hear arguments in the fifth and final age discrimination case before it this term, Meacham v. Knolls Atomic Power Laboratory. This case – brought by twenty-six workers laid off by a Naval contractor – will likely provide clues to at least two important questions:
First, at a time when shrinking pension benefits and rising health costs are forcing more and more employees to work past retirement, whether the Age Discrimination in Employment Act (ADEA) will provide effective protection against practices that disproportionately harm older workers.
Second, and more broadly, how far the Roberts Court is prepared to go to cast aside text, precedent, the position of the EEOC, and even the Bush Administration’s Solicitor General in its apparent quest to curb job discrimination suits generally as an irritant to business defendants.
The Meacham lawsuit was brought by a group of workers who lost their jobs in an “involuntary reduction in force” at the Knolls laboratory. Layoff decisions were made by managers on a subjective basis, with fuzzy standards and little oversight. As it happened, thirty of the thirty-one employees laid off from various departments were over forty. The Second Circuit held that the employees had established the minimum proof necessary to prevail.
However, that court then held that once Knolls asserted that the layoffs were based on “reasonable factors other than age” (RFOA) – a defense expressly made available by the ADEA – the employees immediately had the burden of proving that Knolls’s methods and criteria were not reasonable. The court concluded the employees had failed to carry this burden, and directed the trial court to dismiss their case.
As with some other cases this term, the arguments being made by the employer in defense of this ruling are so at variance with established law and practice – and so devastating to effective administration of the employment discrimination laws – that the Bush Administration has joined AARP and the National Employment Lawyers Association in supporting the employees. They point out that the RFOA provision already creates a stronger defense for disparate-impact age claims under ADEA than under other civil rights laws. Shifting the burden of that defense to plaintiffs would make such claims all but impossible to plead and prove. The employer – plaintiffs and allied amici note – knows exactly why it deemed its actions reasonable; by contrast, employees would have to piece it together through conjecture and discovery, likely in most cases to be both dauntingly expensive and futile.
This is why defenses like this are called affirmative, meaning it is the defendant’s job to come forward and prove them. The RFOA provision is written just like other affirmative defenses in the ADEA and in similar laws: it states that certain “otherwise prohibited” practices “shall not be unlawful.” Indeed, the RFOA defense is sandwiched between two other affirmative defenses in the same sentence. No wonder that the EEOC and the Department of Labor have long treated it as a traditional affirmative defense, as have most courts of appeal.
Often in cases like this, the employer – and the Court’s conservatives – find a way to position themselves as faithful to the “plain text” of the statute, while portraying the employee as advancing policy-based arguments inconsistent with that text. Typically, this characterization is simply a red herring. Yet in this case it is actually true – save that the roles are reversed. Rather than pointing to any feature of the statute itself, Knolls relies on ambiguous language from case law, and on the differences between age discrimination and race or sex discrimination. Those differences are the reason the RFOA defense was provided, but no reason to treat it differently than other defenses.
If Knolls clearly has the weaker argument here, it is less clear who has the better of a disagreement between the employees and the Solicitor General. Their dispute is about whether the RFOA defense replaces or supplements the “legitimate business justification” test developed under Title VII of the Civil Rights Act. The Court held in Ward’s Cove Packing v. Antonio (1989) that under the latter test, employees retained the burden of proving that a challenged practice was not a “business necessity.” Congress reversed that decision as to Title VII, but didn’t mention age discrimination. In 2005, the Court held in Smith v. City of Jackson that disparate impact claims were permitted under the ADEA, subject to the RFOA defense. Smith said cryptically that Ward’s Cove “remains applicable to the ADEA.”
It’s not clear what that means, since Ward’s Cove didn’t take account of the ADEA’s unique RFOA defense. The Court didn’t mention the burden of proof in Smith, because it found the existence of RFOAs “clear from the record.” The Knolls workers say Smith means that the ADEA includes both the business-justification and RFOA defenses. The Administration says this is too convoluted; since the RFOA is a stronger defense and is spelled out clearly in the ADEA, it must replace the Title VII test. What “remains applicable to the ADEA,” in the government’s view, are other aspects of the Ward’s Cove decision regarding disparate-impact claims.
If a majority of the justices accept either the plaintiffs’ or the Solicitor General’s view, they will preserve the ADEA as a potentially effective antidote to discriminatory schemes manifest principally through disparate impacts. But will they? Last term’s decision in Ledbetter showed the conservative bloc’s eagerness to erect insuperable procedural barriers to workplace discrimination plaintiffs, leaving the substance of laws intact but often unenforceable. In oral arguments during February of the current term, some of the same justices appeared eager to follow up Ledbetter by reading protection from retaliation out of two civil rights laws.
On the other hand, the Court has sided with ADEA plaintiffs and the Bush Administration this term in two lower-profile cases, where most or all the Justices agreed that employers’ challenges to common-sense principles of evidence and EEOC procedure were simply a bridge too far. Wednesday’s arguments should provide an indication of whether Knolls’s super-RFOA theory crosses that indistinct line, or will constitute one more weapon in the conservative majority’s arsenal.