Georgia County Government - October 2008 - (Page 51) Ultimately, employers facing tough decisions regarding layoffs and reductions in force must carefully consider the impact such employment decisions have on workers age 40 and older. Meacham fashioned a two-step analysis that first requires the employee to prove that the employer’s actions had a disparate impact on workers age 40 and older. The employer must then prove the reasonableness of the factors relied upon in making the employment decisions at issue. With respect to the employee’s burden of proving disparate impact, the Court stated that an employee cannot merely introduce a facial disparate impact based upon the number of older workers impacted by the employment action, but must point to a specific practice that caused the disparate impact. In most cases, however, this is likely a distinction without a difference, and many employer advocates have voiced concerns that Meacham essentially assumes employer liability in disparate impact cases, forcing the employer to carry the primary burden of proof. Implications for Future Reductions in Force Meacham’s holding means that employers sued under the ADEA will have a more difficult time avoiding liability unless they develop a reasonable reduction in force plan that does not have a disproportionate effect on older workers. The Court recognized this in their opinion, noting that lawsuits over reductions in force could well become difficult and costlier to defend. As a result, there will be an increased incentive for older workers to bring disparate impact suits, as well as an increase in settlement values and the number of cases in which the plaintiff prevails. Ultimately, employers facing tough decisions regarding layoffs and reductions in force must carefully consider the impact such employment decisions have on workers age 40 and older. Employers are advised to keep thorough records of layoff decisions and reductions in force which may have a disparate impact on workers over 40, to carefully train management about the implications of such decisions, and to work with counsel in constructing an RIF program that hinges, to the extent possible, on objective and measurable criteria. Without developing reasonable criteria for selection of employees to be terminated in reductions in force, employers will likely be vulnerable to class-wide legal claims by displaced older workers. ■Benton J. Mathis, Jr., is a partner in the Atlanta law firm of Freeman Mathis & Gary, LLP. Mathis has represented county governments and other local governments throughout Georgia. Kelly E. Morrison is an associate attorney in the Labor & Employment Law section of Freeman Mathis & Gary, LLP. Proud of our Past, Ready to Meet the Future 114 Courthouse Street Blairsville, Georgia 30512 706-439-6000 • 706-439-6004 www.unioncountyga.gov email: unioncounty@uniongov.com UNION COUNTY Sole Commissioner OCTOBER 2008 www.accg.org PM 9/2/08 9:24:28 51 Lamar Paris 392720_Union.indd 1 http://www.unioncountyga.gov http://www.accg.org
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