Adams v. Florida Power Corp. and the trend of lowering an employer's burden of proof to rebut age discrimination claims

Brigham Young University Law Review, 2003 by Brough, Daniel K

In summary, the Eleventh Circuit's holding in Adams relied upon several distinct lines of reasoning. First, it conducted a faux plain language analysis and reasoned that Title VII and the ADEA are not analogous and that the ADEA is, in fact, more analogous to the Equal Pay Act-a provision which, the Supreme Court has held, does not allow disparate impact theories. It then reasoned that the ADEA's legislative history indicates a congressional intent to remove disparate impact from the purview of the ADEA. Finally, it reasoned that in Hazen Paper, the Supreme Court manifested its inclination to reject disparate impact claims under the ADEA. As will be demonstrated in the remainder of this Note, the court's conclusions with respect to Title VII, the ADEA's legislative history, and the Supreme Court's statements were all correct; its analogy between the ADEA and the Equal Pay Act, however, could prove disastrous for future disparate treatment plaintiffs.

IV. HOW THE ELEVENTH CIRCUIT ILLUMINATED THE JUDICIAL TENDENCY TO DILUTE THE ADEA'S REASONABLE FACTORS EXCEPTION

The Eleventh Circuit correctly held that the ADEA precludes disparate impact claims and provided a correct answer to the circuit split,59 but its analysis is dangerous to future disparate treatment plaintiffs. Its analogy between the ADEA and the Equal Pay Act was designed to show that because the ADEA is linguistically akin to the Equal Pay Act-a statute that the Supreme Court has held to preclude disparate impact-the ADEA should be similarly construed. Its result, however, may be to articulate an interpretation of the term "reasonable," as used in the ADEA, so as to make it inordinately difficult for disparate treatment plaintiffs to successfully sue discriminating employers. If this is indeed the result of the analogy, then Adams would conform to a long line of cases that improperly dilute the term "reasonable."

This Part will first analyze the tripartite burden-shifting scheme currently applied in ADEA cases and demonstrate that, in some cases, the scheme may significantly reduce the burden of proof a defendant must meet to rebut a prima facie case of age discrimination. It will then analyze the Eleventh Circuit's analogy between the ADEA and the Equal Pay Act and show how the analogy also reduces a defendant's burden of proof, although through a different means; this illustrates a judicial trend, manifested in at least two ways, of limiting a defendant's burden of proof. This Part will then present two reasons why diluting the ADEA's reasonability requirement is improper. First, cases applying the tripartite burden-shifting scheme to ADEA cases rely on unfounded reasoning. Second, diluting the reasonable factors exception is inconsistent with Congress's intent in passing the ADEA.

A. The Trend of Reducing a Defendant Employer's Burden of Proof

Courts, including the Eleventh Circuit, have departed from the plain language of the ADEA's "reasonable factors other than age" test by applying Title VII's tripartite burden-shifting to ADEA cases. That burden-shifting scheme is tripartite in nature.60 First, an ADEA plaintiff must establish a prima facie case.61 A plaintiff establishes a prima facie case by demonstrating (1) that she was at least forty years old at the time of termination; (2) that she was terminated; (3) that she was meeting the defendant employer's reasonable expectations of employee performance at the time of the termination; and (4) that she was replaced by a younger employee.62 Once the plaintiff establishes that prima facie case, the burden of production then shifts to the employer, who must defend by presenting evidence of a legitimate, nondiscriminatory reason for the allegedly discriminatory action.63 According to the Eleventh Circuit, "a legally sufficient, legitimate, nondiscriminatory reason [exists] if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion."64 A defendant employer meets its burden when the admissible "evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff with clear reasons for its decision;"65 evidence, not mere testimony, must be presented to meet that burden.66 If the defendant remains silent, the court will enter judgment in favor of the plaintiff as a matter of law;67 presumably, the same result obtains if, for some reason, the defendant cannot meet its burden. But if the defendant meets its burden, then the burden shifts back to the plaintiff to prove that the legitimate, nondiscriminatory reason set forth by the defendant is a pretext.68