U.S. Supreme Court
The ADEA prohibits employment practices that have an unjustified impact on older workers, Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), but also provides that it "shall not be unlawful for an employer... to take any action otherwise prohibited... where the differentiation is based on reasonable factors other than age (RFOA)." The question presented is whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the RFOA defense, as held by the Second Circuit in this case, or whether it is the employer who must prove the reasonableness of an action.
Status: PENDING. Amicus brief in support of the defendant/employer April 11, 2008.
