High Court Decides Age Case

In a decision that could signal the U.S. Supreme Court’s shift away from what was thought to be a pro-employer majority, the Court has made it more difficult for employers to defend cases filed under the Age Discrimination in Employment Act (ADEA).  If you want a bath in legal mumbo jumbo (LMJ), read the Court’s opinion in Meacham v. Knolls Atomic Power Laboratory.  Not only is there plenty of LMJ, Justice Souter (who writes the majority opinion) uses a premier piece of Corporate BS: “at the end of the day.”  So, the Court not only issues a dreadful decision, it legitimizes a piece of Corporate BS.

In fairness to the Court, it would be a difficult to decide this case without LMJ.  Under the ADEA, an employer can beat an age claim if its decision is ”based on reasonable factors other than age.”  In this case, the question was whether the employer must not only produce evidence raising this defense, but also persuade the jury of its merit.  You undoubtedly see the shadows of LMJ creeping in.

The facts weren’t particularly good for the employer.  There was a reduction in force (RIF).  Thirty-one employees were let go.  Thirty of them were at least 40 years old.  So, almost 100% of the impacted employees were in the protected age group (40 years old and above).  The employer had a formula for determining who would be included in the RIF.  The employees claimed the formula was weighted against older employees.

If the employer only had to present evidence that its decision was based on factors other than age, the formula cinched the case.  If the employer also had to persuade a jury of the merit of the formula, the employer’s defense was harder.  The Court found that the employer must do both.

Drawing a distinction between producing evidence of a defense and persuading a jury of its merit is difficult without LMJ.  Suffice it to say that this decision makes getting an age case to a jury easier for an employee.  Juries are generally sympathetic to older employees, so the Court’s decision is a bummer for employers.

The Court may have nonetheless reached the right decision as the ADEA is presently written.  But as I’ve noted previously, the ADEA needs to be changed.  If it’s not and there’s an onslaught of age cases as baby boomers turn 60 at the rate of thousands per day, our economic woes may be just beginning.

Chances of a changing the ADEA?  Nil.  Ask John McCain, at age 72, Barack Obama, who needs as many votes from older boomers as he can get, and members of Congress, who listen carefully to one of the most powerful lobbies in America–the AARP, what they think about a change.  The flawed ADEA is with us at least until the boomers are dead and gone–and that’s a long way off.