Supreme Court Aids Older Workers Alleging Discrimination

HNWBusiness and Corporate Legal Services, Business Law, Elder Law, Employment Law

Justices place the burden of proof on employers

In 2008, I wrote the Supreme Court had further enhanced the ability of older workers to bring job discrimination claims, in a decision that came as the nation’s workforce was (and still is) aging with many companies are downsizing and laying off workers.

By a 7-1 vote, the court ruled that when a company asserts layoffs of older workers that are based on factors other than the worker’s age, the company has the burden of proving those factors are valid if challenged by the dismissed employees.

The U.S. Equal Employment Opportunity (EEOC), which handles age complaints, reports that age claims have increased steadily over the past decade.  About 19,000 are filed annually.

Lawyers who represent employees have been very supportive of the decision, but business groups term it a “disappointment”.

As a practical matter, any other result would have made it virtually impossible for employees to successfully challenge (seemingly) neutral corporate policies… such as reductions-in-force… that some employers have used to target older workers”, said Fredrick P. Niemann, Esq., an elder law attorney in Freehold, NJ.

Employers can defend themselves by showing that a lopsided impact upon older workers was based on “reasonable factors” other than age, such as performance criteria or needed skills.  The question of whether the employer bears the burden of proving that the dismissal/layoff policy was based on non-age factors, or whether the employee must prove the factors were illegitimate, had been a major contention even by the courts.

Who wins or loses age discrimination cases will depend on who has the burden of proof.

That issues were resolved for good when in an opinion by then Justice David Souter, the high court reversed a lower court decision based on the standard of proof used.  He said the act’s text and structure put the burden of proof on employers.

Thursday’s dispute traced to the mid-1990s and the end of the Cold War.  Knolls Atomic Power Laboratory in upstate New York, which had helped maintain nuclear-powered warships, was forced to scale back.  About 100 workers took a buyout offer, and 31 others were laid off.  Thirty of those laid off were at least 40 years old.  Clifford Meacham was among those who alleged that the layoffs were aimed at older employees.

Knolls had said they were based on objective factors such as performance, flexibility, and critical skills.  Meacham won a jury verdict, but the U.S. Court of Appeals for the 2nd Circuit eventually ruled Meacham had not proven that Knolls’ justification was invalid.

“There is no denying that placing upon employers the burden of persuading (judges and jurors) that their decision to lay off an employee makes it harder and costlier to defend” certain employment policies, said the court.  He added, however, that Congress “set the balance where it is” and that those who object to that interpretation should take it up with Congress.

The court adopted the position of the EEOC, which had sided with the employee.

In what almost seems like a reversal of the Supreme Court decision based on 2022 demographics,, employers are actively recruiting older workers for many reasons.  Still, for that employee who feels they were dismissed prematurely because of their age, the law remains today favorable to them at least as to the burden of proof.

To discuss your NJ employment matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Employment Law Attorney


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