Georgia County Government - October 2008 - (Page 50) COUNTIES AND LAW continued from page 49 is based on a ”Reasonable Factor Other Than Age.” 29 U.S.C.A. § 623(f)(1). In Meacham, the Supreme Court first noted that it had referred to the RFOA exception in the past as an “affirmative defense.” Moreover, the Court found that the text and structure of the statute compelled the conclusions that the RFOA exception exempts otherwise illegal conduct, thereby creating a defense for which the employer (the party seeking to assert the defense) bears the burden of persuasion. The Supreme Court also rejected Knolls Atomic’s argument that the RFOA exception should be construed as an element of liability. Disparate impact cases under discrimination laws are typically governed by a three-step analysis. First, an employee must identify a specific employment practice and establish that this practice is discriminatory. Next, the burden shifts to the employer, to offer a legitimate “business necessity” for the practice. Finally, the burden shifts back to the employee to show that the demonstrated business necessity either does not support the employment practice or that an equally effective alternate practice would have been less discriminatory. The classic example of this analysis is an employer’s insistence on a high school degree for blue collar workers, which often has a disparate impact on minorities. An employer wishing to abide by such a policy must articulate why the policy constitutes a business necessity — say, for instance, the employer argues that workers must be able to read at a high school level in order to understand safety guidelines for heavy machinery. It then becomes the employees’ burden to explain why reading at a high school level does not support the business necessity of safety, or to articulate a less discriminatory policy that would be equally as effective at promoting safety in the workplace. In the ADEA context, however, the analysis is somewhat different. In Smith v. City of Jackson, the Supreme Court held that the ADEA permits “disparate impact” claims where a specific employment practice (such as a reduction in force or layoff ) has the effect of adversely harming older workers even though there was no intent to discriminate. This holding, at least, tracked Title VII cases. Conversely, Smith also made clear that an employer need not present a defense of business necessity in an ADEA disparate impact case, but may instead rely on the “Reasonable Factor Other Than Age” (RFOA) defense. Colquitt County Established 1856 Board of Commissioners: John B. Alderman, Chairman Terry Clark Johnny Hardin Billy Herndon Ray Saunders Luke Strong Rebecca Whitaker Jack D. Byrd, Jr., Administrator Colquitt County Courthouse Annex Deborah Cox, County Clerk 101 East Central Avenue Lester M. Castellow, County Attorney Moultrie, Georgia 31768 www.ccboc.com A PROUD PAST WITH A PROMISING FUTURE The Supreme Court’s Holding In Meacham, the Supreme Court elaborated on the differences between a Title VII and ADEA disparate impact claim, ruling that, in ADEA cases, the RFOA defense is an affirmative defense, which means that employer bears the burden of: (1) articulating reasonable factors other than age upon which the employment action was allegedly based; and, (2) presenting supporting evidence that those factors have merit. The Court in Meacham held that the “business necessity” test no longer applies in ADEA disparate impact cases, stating that the application of both an RFOA and business necessity test would be wasteful and duplicative. Instead, the Court in 50 GEORGIA 1 339181_COLQUITT.inddCOUNTY GOVERNMENT 7/30/07 6:30:42 PM http://www.ccboc.com
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