A federal appeals court upheld a mass layoff in Dallas that disproportionately affected older workers.
In 2004, the Dallas Morning News implemented a reduction-in-force (RIF). Eighteen workers over age 40 filed an age discrimination lawsuit alleging that the newspaper’s selection process relied on subjective factors susceptible to age-based stereotypes; left too much discretion in the hands of supervisors; the underlying premise for the RIF hinted at ageism; and replaced older workers with younger new employees.
A 2005 U. S. Supreme Court decision held that age discrimination victims could challenge employer policies and practices that have a disproportionate adverse effect on older workers even if the employer did not intend that older workers be harmed. A follow-up Supreme Court decision in 2008 held that it is an employer’s burden to prove that any policy or practice that has an adverse impact on older workers is based on a “reasonable factor other than age.”
The trial court, after only a cursory analysis, questioned whether undue subjectivity in a selection process could even be challenged under the age discrimination law and held that nevertheless the workers failed to prove that the undue subjectivity in the RIF selection process actually caused more older workers to be terminated than younger workers. The workers appealed.
AARP’s friend-of-the-court brief, filed by AARP Foundation Litigation attorneys, argued that the practice of giving supervisors unchecked discretion to engage in subjective decision-making is a proper subject of a disparate impact challenge under the ADEA. The brief explained that since the subjective factors the newspaper relied on to make termination decisions were susceptible to the influence of well-known age-related stereotypes, the trial court should have held the employer to its burden of proving that the factors were “reasonable.” Allowing employers to articulate “other factors” with no obligation to prove they are reasonable renders employee challenges, in the words of the brief, “an exercise in futility” and erects what is in essence an insurmountable hurdle for wronged workers.
The brief pointed out that subjective tests are well-known to be susceptible to the influence of age-related stereotypes, and this is why Congress and the Supreme Court placed the burden on employers to justify their decisions.
The U.S. Court of Appeals for the Fifth Circuit summarily upheld the lower court ruling.
What’s at Stake
Subjectivity in RIFs is a serious issue, as numerous studies have documented express as well as hidden tendencies to discriminate on age (so-called “hidden ageism”). It is important that employers be required to either develop objective standards for RIFs or prove that any subjective criteria are reasonable. Shifting the burden of proof about those decisions from employer to employee places an impossible standard on wronged workers and frustrates the intent of the law.
Powell v. Dallas Morning News was decided by the U.S. Court of Appeals for the Fifth Circuit.