The Burden of Proof in Age Discrimination Cases

Last week the United States Supreme Court may have made it easier for plaintiffs to succeed in age discrimination cases by clarifying that the employer has the burden of persuading the fact-finder of the reasonableness of "reasonable factors other than age" justifying an employment decision that has a disparate impact on older workers. In Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, the employer laid of 31 employees based on the scores on performance tests administered by supervisors. Because the scores contained a subjective element, they were identified as a factor that could have accounted for the test results' bias against older employees. (30 out of the 31 laid off employees were over 40.)

The result of the Supreme Court's decision is to place more power in the jury's hands to evaluate the reasonableness of the practice identified as having a disparate impact on older employees. In other words, if an employer takes an action having an adverse impact on older workers, it is not enough for the employer to say that that action had nothing to do with age. Rather, the employer must persuade the jury that the action was reasonable.

Read more...

Law and Politics Revisited

In an earlier post (Nov. 15, 2007), I compared the 2008 presidential candidates to the choice between litigation and mediation. At the time I was writing the favored candidates were Rudy Guiliani and Hillary Clinton, both candidates with a combative style. After a fairly drawn-out process, both parties have headed in a different direction, about to choose John McCain and Barack Obama. To me this indicates that the country is in more of a problem-solving mode than a fighting mode. But of course there will still be some fighting ahead.

And for all the fighting that has taken place so far, this year is absolutely tame compared with some years in the past. Last week I picked up an advance copy of Norman Mailer's Miami and the Siege of Chicago, which is being re-issued this summer by NYRB Classics. There may be nothing better out there to give some historical perspective on the campaign this year. It makes you wish there were a Norman Mailer around to write about this year's campaign.



The old era of political conventions was coming to an end in the late 1960's. But the candidates still made the rounds of the delegations trying to pick up some extra votes, and the outcome was not certain heading into the convention. Nowadays conventions are so stage-managed and choreographed they have lost most of their drama. They are infomercials for the party's candidates, really, and we will not tolerate the kind of uncertainty leading up to the convention that used to be taken for granted. We expect that the nominee will be selected by the voters, not the delegates. Not that these changes are bad necessarily, it's just interesting to be reminded how different our time is from the recent past.

Even the 1968 Republican convention allowed for some infighting. While Nixon had the nomination pretty well locked up before the convention, Rockefeller was hoping to get enough votes on the first ballot that he could turn the convention to him in a subsequent ballot. On the Democratic side, Humphrey went into the convention also with a comfortable lead, but knew that anything could happen that year. Eugene McCarthy still had enough loyal troops to cause trouble, though never enough to gain the nomination. George McGovern had just entered the race, trying to pick up all of the Bobby Kennedy delegates. A late movement was trying to draft Teddy Kennedy into the race. In Mailer's view, Lyndon Johnson sat behind the scenes the whole time, deliberately trying to split his party to preserve his legacy. And that was only the nomination fight. The real drama, with real blood flowing, of course took place on the streets outside the convention hall.

We think we have lived through an epic nomination battle this year? Compared to 1968, this was nothing.

Read more...