Thursday, June 26, 2008

U.S. Supreme Court rules that employers have the burden of persuasion on ADEA's reasonable factors other than age defense

Employers arguing in ADEA disparate impact cases that their employment decisions were based on "reasonable factors other than age" bear the burden of persuasion, ruled the U.S. Supreme Court on June 19. Meacham v. Knolls Atomic Power Lab., No. 06-1505 (June 19, 2008) (PDF).

The RFOA defense provides that "[i]t shall not be unlawful for an employer … to take any action otherwise prohibited under [the ADEA's operative anti-discrimination subsections] where the differentiation is based on reasonable factors other than age." 29 U.S.C. § 623(f)(1).

The upshot of this ruling for employers is that defending ADEA disparate impact claims will be a little more difficult. If the plaintiff can show a particular employment practice disproportionately hurt older workers, the onus will be on the employer to prove (not just articulate) the reasonableness of a non-age related factor. Disparate impact cases are rare, and this decision will not likely cause problems for too many employers.

Thursday, June 19, 2008

West Virginia: Where Freedom Rings

June 20 is West Virginia Day. Today, I join a number of other West Virginia Bloggers taking part in a challenge to create "A Better West Virginia Day" by defining West Virginia "from the inside out" and to create "new stereotypes" of the state.

The only way to eradicate a stereotype is to create a new one. We all know the old stereotype of the toothless, inbred, racist, ignorant hillbilly that persists to this day. The truth is, the vast majority of West Virginians are nothing like the stereotype. It's time we redefined ourselves.

If I had to choose one word that truly sums up West Virginia and its people, that word would be FREEDOM.

Our state was founded on the ideal of freedom. The Latin motto Montani semper liberi ("Mountaineers are always free"), adopted in 1863, expresses the state's steadfast devotion to the principles of the Declaration of Independence and the Union.

The motto rings true today. We are a rural people who love our freedom. In the Eastern Panhandle, where I live now, throngs of Marylanders and Virginians have moved to West Virginia to escape the congestion and stress of big city life. They want to raise their children in safe, clean and peaceful communities surrounded by the natural beauty that only West Virginia can offer. By the thousands, they're finding freedom here in our state.

Perhaps most importantly, West Virginians are willing to fight for their freedom. It has been said that per capita, more West Virginians have served in America’s armed forces than the residents of any other state. West Virginia's Army National Guard has been selected as the very best state Army National Guard in the nation. Since the attacks of September the 11th, 2001, every operational unit of the West Virginia National Guard has been deployed -- and some are on their second and third deployments. When freedom rings, West Virginians answer the call.

It's no coincidence George W. Bush has celebrated Independence Day in West Virginia four times since becoming President. (2002, Ripley; 2004, Charleston; 2005, Morgantown; and 2007, Martinsburg). West Virginians exemplify freedom. The President always comments that he loves coming to this state "because it's a state full of decent, hardworking, patriotic Americans," and whether you agree with most of what he says or not, he's right about that.

So on this West Virginia Day, let us not focus on outdated stereotypes from the past, and instead focus on a common thread that truly binds us as West Virginians--the freedom in our hearts.