June 23, 2008
The Age Discrimination in Employment Act (ADEA) protects employees over the age of 40 from workplace discrimination. However, the ADEA includes an exception permitting employers to take adverse employment action against older employees if the actions are “based on reasonable factors other than age.” This is known as the RFOA defense.

In Meacham v. Knolls Atomic Power Laboratory, 554 U.S. ___ (June 19, 2008), the United States Supreme Court held that an employer attempting to defeat a disparate-impact claim under the ADEA bears the burden of proving the RFOA defense. In so holding, the Court cleared up confusion as to whether it was the responsibility of the employer or the plaintiff to prove that the defense applied to a given case.

Besides clarifying this important point of law, the Meacham decision also sounds a warning to employers regarding the use of critical skills assessments. Critical skills assessments are often utilized to provide an objective basis for adverse employment action. However, employers should be aware that the plaintiff bar may use expert testimony to show that the CSA rating process itself is discriminatory. For example, in Meacham, the plaintiff presented the expert testimony of a statistician who indicated that the results of the CSA were skewed according to age, especially in those categories that permitted the most subjective rating of employees.

The Court’s decision in Meacham highlights the importance of a sophisticated statistical and legal review of the results of a CSA process in a layoff. For further information, please contact any of the Labor & Employment attorneys at Frost Brown Todd LLC.