Even though the Supreme Court has decided two recent cases in favor of a more expansive reading of the ADEA, the courts are still allowing employers to act based on ageist stereotypes. The courts, including the Supreme Court, have permitted employers to interpose as defenses to discrimination such factors as greater seniority, higher position or salary, higher healthcare costs, proximity to retirement, and even retirement status, all of which the ADEA was designed to preclude. These factors correlate so strongly with age that they could easily be used as thinly veiled covers for discrimination based on ageist stereotypes. If the courts are serious in enforcing the purpose of the ADEA, the “reasonable factor other than age” [RFOA] defense must be interpreted to protect older employees from discrimination based on age stereotyping by requiring the employer to justify using such criteria for employment decisions.
The Supreme Court has now agreed that the ADEA was designed to attack practices that have a disparate impact on older employees, unless such practices are justified by RFOA. The Court has also decided that RFOA is an affirmative defense, as to which the employer bears the burden of persuasion; however, the Court has indicated that RFOA will not be difficult to prove, and lower courts are so holding. This article supports the argument for a reversal of this trend; that a strict interpretation of RFOA is crucial to the survival of the ADEA’s efficacy in combating age discrimination.
Available at: http://works.bepress.com/judith_johnson/1/