Jackson Lewis's Supreme Court Rules Employers Bear Burden of Proving Reasonableness of Employment Policies and Actions contains good advice for employers:
"Nevertheless, in its June 19th decision, the Supreme Court ruled that the employer must not only produce evidence supporting the reasonable factors other than age defense, but also must persuade the factfinder of its merit. The Court’s holding was based on several factors. First, the Court noted that the RFOA exemption appears alongside the bona fide occupational qualifications (BFOQ) exemption in the text of the ADEA, a part of the statute that is separate from the general prohibitions. Using principles of statutory construction, the Court reasoned that the RFOA should be deemed an affirmative defense for an employer in an ADEA case, as is the BFOQ. On this basis then, the Court concluded that Congress intended the RFOA exemption to be treated differently than the general prohibitions of the ADEA, which placed the burden of proof squarely on the employee.
Next, the Court rejected KAPL’s argument that the RFOA should be treated simply as an elaboration on an element of liability, where the burden of proof lies with the employee. Instead, the Court held that City of Jackson clearly defined a non-age factor as a premise for disparate impact, not a defense to it. Therefore, the Court reasoned that the focus of a RFOA defense is not to merely ass"
While it will be up to the lower federal courts to develop and outline the parameters of this new decision, the Supreme Court acknowledged that “putting employers to the work of persuading factfinders that their choices are reasonable makes it harder and costlier to defend than if employers merely bore the burden of production” and recognized that this will sometimes affect the way employers make employment decisions. No longer may employers simply proffer a non-age factor for the employment practice in question; now, they must also be prepared to produce evidence proving the non-age factor is reasonable under the circumstances. There can be no doubt then that the Supreme Court’s interpretation of the statute has placed an added burden on employers with respect to federal age discrimination claims. Employers should therefore conform their policies and practices to take into account this new decision and seek counsel as to how best to adapt to this new paradigm.