On January 18, 2007 the U.S. Supreme Court added two new employment law cases to its docket. The Supreme Court only hears about 70 cases a year, and currently five of those cases will be cases involving the ADEA; a high percentage of cases to focus on one statute. The ADEA (Age Discrimination in Employment Act) was created in 1967 to afford workers over 40, protection from employment discrimination. Since its enactment, over 33 years ago, many unanswered questions still remain about the breadth of protection the statute affords older workers. Recently, however, the Supreme Court seems to be granting certiorari to an increased number of ADEA cases, due to the upsurge in related litigation. A few factors may explain the increased amount of ADEA claims; (1) baby boomers are now well into retirement age increasing the size of the protected class; (2) technological and medical advances have increased the average life span; and (3) with the economy possibly inching towards recession, many employers are reducing their workforce to cut costs, starting with older workers who tend to earn higher salaries.
Meacham v. Knolls Atomic Power Laboratory is one of the recently added employment law cases that the Supreme Court will decide this year. The case involves a federal research laboratory that dismissed 31 employees, 30 of whom were over 40. The defendants allege that they used factors like “flexibility” and “criticality” to assess employee skills when deciding whether the employee should be terminated. The ADEA provides that employers have the discretion to implement employment actions that adversely affect older workers, if the reason for doing so is reasonable. The gravamen of the Meacham case is whether the plaintiff or the defendant bears the burden of proving that the evaluation criteria used to terminate employees was, or was not, reasonable. The opinion from this case has the potential to greatly affect older worker’s rights. If the Supreme Court holds that the employee bears the burden of proving the unreasonableness of the employer’s actions, it will increase the difficulty of prevailing on an ADEA claim.
The other four ADEA cases on the Supreme Court docket are; Mendelsohn v. Spring/United Management, Fed. Express Corp. v. Holowecki Co., Kentucky Retirement Sys. V. EEOC and Gomez-Perez v. Potter. The question in Mendelsohn is whether the court may allow evidence from other employees who feel the defendant has discriminated against them because of their age, the exclusion of which could severely weaken the plaintiff’s claim. Holowecki is based on the more procedural question of whether an intake questionnaire may be used as a charge of discrimination. As employers are not allowed to use race, color, religion, sex, and origin even as factors when deciding employment actions pursuant to Title VII, the Supreme Court will decide if the same is true in regards to age in Kentucky Retirement Sys. Finally, Gomez-Perez deals with another question that forces the comparison of the ADEA with Title VII, of whether the ADEA also allows for claims of retaliation based on the employee’s involvement in an ADEA claim or complaint.
The decision of all five of these cases will create more concrete guidelines of which cases may be pursued under the ADEA and exactly which side bears the burden of proof in litigating those claims. In 2005, the Supreme Court announced in Smith v. City of Jackson that the ADEA was intended to be interpreted similarly to Title VII in allowing disparate impact claims, expanding the protection the ADEA offers. These are claims where the specific intent to discriminate need not be proven, just that a particular employment practice adversely affects those over 40. This issue was controversial due to the inclusion of the “reason other than age” defense provided for in the ADEA. The current Supreme Court has the power to cut back on the protection Smith offered older workers, though their doing so seems unlikely. Since Smith was decided, Justice O’Connor and Chief Justice Rehnquist have left the court and been replaced by Chief Justice Roberts and Justice Alito. Neither Justice O’Connor nor Justice Rehnquist joined the opinion in Smith. Therefore, even if the new judges vote in accordance with their conservative record, as long as the remaining judges adhere to their former interpretation of the ADEA, older workers may end this term with greater assurance in their protection under the ADEA.