Reasonable Factors Other Than Age: the Emerging Specter of Ageist Stereotypes

• Publication year: 2009

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 33, No. 1FALL 2009

Reasonable Factors Other Than Age: The Emerging Specter of Ageist Stereotypes

Judith J. Johnson(fn*)

It is beyond question that ageism plays a particularly pernicious role in the workplace. Older workers face widely held societal stereotypes that they are cognitively, socially, andperformatively deficient in the workplace. They are also the targets of ageist attitudes, ageist communication, and age discrimination.(fn1)

I. Introduction

In spite of two recent Supreme Court cases that ostensibly reinstated a more expansive interpretation of discrimination under the Age Discrimination in Employment Act (ADEA), the protection that the ADEA affords still faces the same danger that threatened it before these decisions. The courts, including the Supreme Court, have been allowing employers to interpose defenses that correlate so strongly with age that they can be used as thinly veiled covers for discrimination.(fn2) If the Court is serious about enforcing the purpose of the ADEA, it must interpret the "reasonable factor other than age" (RFOA) defense to protect older employees from discrimination by requiring employers to justify adverse actions that use age-correlative criteria such as greater seniority,(fn3) higher position(fn4) or salary,(fn5) higher healthcare costs,(fn6) proximity to retirement,(fn7) or retirement status.(fn8) The ADEA was designed to preclude consideration of these factors, or at least to require that they be closely scrutinized.(fn9)

The problem is that the courts, including the Supreme Court, have not come to grips with what "reasonable" means for RFOA purposes. At this point, the courts seem to be interpreting "reasonable" to be whatever the employer wants it to mean, without reference to the effect on the protected class. It surely cannot be reasonable to apply factors that have such an obvious impact on older workers without justifying the need for burdening the protected class in particular. An employer-showing that less discriminatory alternatives were not feasible is the usual method of showing that a factor was reasonable. In fact, without a showing that alternatives were not feasible, the employer must have been aware of a substantial risk that he would be adversely affecting the protected class; in other words, the employer must have been acting recklessly with regard to whether he was engaging in discrimination.(fn10) The ADEA imposes liquidated damages on employers who act recklessly, so recklessness is already a state of mind punished by the Act.(fn11) The employer is acting recklessly when he is subjectively aware of a substantial risk that he will be discriminating against the protected class.(fn12) This article argues that if the employer is acting with a sufficiently culpable state of mind with regard to whether the criterion treats the protected class unfavorably, he should not be able to interpose the criterion itself as a reasonable method of achieving his goals, without further justification.(fn13) For example, employer actions based on seniority are usually reasonable unless more senior employees are adversely affected. If the employer uses greater seniority as the criterion for a layoff, for instance, he should have to explain why he did not use a criterion with a less obvious impact on the protected class.

In Smith v. City of Jackson, the Supreme Court agreed that the ADEA was designed to attack practices that have a disparate impact on older employees, unless such practices are justified by a "reasonable factor other than age."(fn14) The Court has also decided that RFOA(fn15) is an affirmative defense, as to which the employer bears the burden of persuasion;(fn16) however, the Court has indicated that RFOA will not be difficult to prove,(fn17) and lower courts are so holding.(fn18)

Prior to these recent Supreme Court cases, but after a case decided by the Court in 1993, Hazen Paper Co. v. Biggins,(fn19) lower courts began restricting protections previously afforded by the ADEA. Although most of these restrictions have been removed, the meaning of the RFOA defense has not been resolved.(fn20)

The most serious obstacle to proving discrimination was the lower courts' refusal to apply the disparate impact theory to the ADEA. Thus, the plaintiff was limited to the disparate treatment theory of discrimination,(fn21) which is more difficult to prove.(fn22) This limitation was removed in Smith v. City of Jackson, in which the Supreme Court decided that the disparate impact theory applies to the ADEA.(fn23) The Court, however, went further and decided that RFOA would be the defense to disparate impact, which was an issue that had not been presented.(fn24) The Court further held, with little analysis, that the employer's justification was an RFOA that precluded liability.(fn25) Subsequently, in Meacham v. Knolls Atomic Power Laboratory, the Court decided that RFOA is an affirmative defense, as to which the employer bears the burden of persuasion, but the Court gratuitously noted that it may make little difference in the outcome.(fn26) However, neither of these cases answered what has become an important question in age discrimination: What does RFOA mean? No arguments were presented in either City of Jackson or Meacham regarding the meaning of RFOA,(fn27) and there was no reference to any authority on the meaning of RFOA.(fn28) Consequently, the Court's unexplained pronouncement in City of Jackson that the defendant's justification was reasonable leaves the meaning of RFOA uncertain.(fn29) Before Meacham, the lower courts generally put the burden of persuasion on the employee and required very little to establish RFOA. The lower courts were responding to City of Jackson, and the result was that disparate impact cases under the ADEA were bound to fail.(fn30) Even though the Court decided in Meacham that the employer bears the burden of persuasion to show RFOA,(fn31) the Court insinuated in both cases that RFOA would not be difficult for the employer to prove.(fn32)

Therefore, for the purpose of this article, this question is presented: How difficult will it be to prove RFOA? If the employer may interpose any defense that does not discriminate on its face against older employees, RFOA will mean nothing more than "legitimate non-discriminatory reason," which is the defense to disparate treatment.(fn33) A "legitimate non-discriminatory reason" is "any" factor other than age. Allowing the employer to use unjustified age-correlated factors gives "reasonable factors other than age" little meaning beyond "any" factor other than age, an interpretation precluded by the Court in recent decisions.(fn34) Nevertheless, the lower courts have failed to scrutinize the meaning of "reasonableness" for RFOA purposes.(fn35) This article examines the possibilities and concludes that "reasonable" must include an employer-justification of any factor that has an obvious impact on older workers, such as seniority, higher salary, or any of the factors cited above. Despite recent Supreme Court plaintiffs victories, unless courts interpret RFOA to forbid the unjustified use of age-correlated factors, the result will be the same for plaintiffs: Age-stereotyping will continue unabated.

Both the Equal Employment Opportunity Commission (EEOC) and the Department of Labor, the agencies interpreting the ADEA, have always equated RFOA with factors that are shown to predict success in the job.(fn36) As Justice Scalia pointed out, City of Jackson was a perfect case for deferring to the agencies' interpretation of the ADEA.(fn37) The early judicial interpretations of the ADEA were consistent with the EEOC and Department of Labor's understanding of RFOA(fn38) and showed that factors that were "inherently time-based, such as experience, years on the job, and tenure . . . [were] inherently age-related and thus [could not] be considered 'factors other than age."(fn39)

The danger of inherently age-related factors is that many superficially reasonable employer practices negatively impact older employees and make it difficult for them to obtain and retain employment.(fn40) For example, in a reduction in force, if the employer decides to cut costs by eliminating higher-salaried workers, this inevitably has a negative impact on older workers who have been employed longer and benefited from raises over the years. If the older worker is then laid off, he may have difficulty obtaining new employment because he is considered overquali-fied and, to match his former salary, overpaid.(fn41) Being able to use the disparate impact theory to prove that a higher-salary justification adversely impacts older employees and putting the burden of persuasion on the employer to show RFOA does not alleviate the problem. Disparate impact discrimination occurs when the employer uses an unjustified neutral employment practice that has a disparate impact on a protected class.(fn42) If the employer may interpose higher salary as an RFOA, the older worker is no better protected than he was before City of Jackson and Meacham. While saving money is clearly a reasonable goal, the employer should not be able to defend the disparate impact on older employees by interposing as an RFOA a method of achieving that goal if it obviously correlates with age without justifying the use of such a factor. In order to use a factor such as eliminating higher-paid workers, the...