LawyersUSA

WASHINGTON – In the last case to be heard in oral arguments before the U.S. Supreme Court this term, the justices were asked yesterday to clarify the burden-shifting scheme in disparate impact age discrimination cases.

In Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, the Court will determine what happens when an employer's evidence that a policy that adversely affects older workers was based on a reasonable factor other than age, and an employee's evidence that the practice was unreasonable, have virtually the same weight.

In essence, the Court is considering what happens in an evidentiary tie.

The answer depends on who has the burden of proving reasonableness: the employee or the employer.

The case stems from a reduction-in-force plan under which Knolls Atomic Power Laboratory laid off 31 employees, 30 of whom were over the age of 40. Those employees brought a disparate impact age discrimination claim under the ADEA and were awarded a $6 million jury verdict.

Knolls appealed, and the judgment was initially affirmed. But on rehearing, the 2nd Circuit reversed, holding that the plaintiff bears the burden of proving reasonableness under the burden-shifting test established in Ward's Cove Packing v. Antonio, 490 U.S. 642 (1989).

If the evidence presented by the parties results in a virtual tie, the plaintiff has failed to meet that burden, the 2nd Circuit held, vacating the judgment.

Kevin K. Russell, a partner at the Washington, D.C. firm of Howe & Russell who represents the employees, argued that beyond the three-part Ward's Cove test, the "reasonable factor other than age" is an affirmative defense that the employer has the burden of proving.

Under that case, the plaintiff must first demonstrate the existence of an employment practice with a discriminatory effect. The burden then shifts to the employer to demonstrate a legitimate business justification for the practice. The burden then shifts back to the plaintiff to show that the proffered reason is pretextual.

But Justice Ruth Bader Ginsburg wondered if adding an additional element might make the process "harder for the plaintiff," who would then have to counter the affirmative defense.

"We think that the layering of the tests arises out of the structure as Congress wrote it," Russell said, noting the that "reasonableness" language in the ADEA is sandwiched in between two other provisions that are affirmative defenses, not elements of the prima facie case.

Justice Anthony Kennedy, noting that the statute is far from clear as to who bears the burden of proving reasonableness, tried to figure out what made better sense.

"Why is it beyond the employee's means and capacity to show that this is unreasonable?" Kennedy asked. "It seems to me that's the gravamen of this case."

"The factors that [show] reasonableness tend to be in the employer's possession," Russell said. "They have better access to it. It makes sense to make them bear the burden."

Chief Justice John G. Roberts, Jr., questioned that logic.

"Given discovery, that doesn't seem to be a very compelling case," Roberts said, noting that the employee can depose supervisors and obtain records fairly easily once litigation commences.

Daryl Joseffer, Assistant to the Solicitor General who argued as amicus curiae on behalf of the employees, argued that the reasonableness test should replace Ward's Cove, creating a two-step process where the plaintiff demonstrates a discriminatory practice, and then the employer can defend by proving reasonableness.

But he said the government agreed with the employees that the employer bears the burden of proving reasonableness, and said the Court should give deference to Department of Labor regulations, adopted by the Equal Employment Opportunity Commission, which place the burden on the employer.

"The Department of Labor [put] the burden on the employer in all cases," Joseffer said.

Seth P. Waxman, a partner at WilmerHale's Washington office, who represented the employer, said that the Ward's Cove analysis applies and that proving reasonableness is part of the third step – for which the burden rests on the employee.

Justice John Paul Stevens asked, "What do you do about the language in the statute" that places the reasonableness language in the middle of two affirmative defenses?

"We know [from] Black's Law Dictionary and this Court's decisions [that] an affirmative defense is a defense that says: 'I admit the allegations in the complaint, but I have a justification for it in the law,'" Waxman said.

In this case, the employer made no such admission, he said.

A decision is expected before the term ends in June.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com