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

Use of the tripartite burden-shifting scheme, as taken from the McDonnell Douglas burden-shifting scheme,85 predates Adams in the Eleventh Circuit86 and is in wide usage in virtually all the circuit courts of appeal.87 As such, it is the generally accepted application (or misapplication) of the ADEA's reasonable factors test, in spite of its elimination of the reasonable factors exception in some instances; it is also the trend to which the Eleventh Circuit in Adams conformed.88

B. How the Eleventh Circuit's ADEA/Equal Pay Act Antilogy Fits into this Trend

The majority in Adams analogized between the ADEA and the Equal Pay Act in an attempt to demonstrate that because the two provisions had similar language, and the Equal Pay Act precludes disparate impact, the ADEA must preclude disparate impact as well.89 There is a serious flaw in that analysis, however, that further hints at a judicial tendency to dilute the ADEA's reasonable factors exception. The Equal Pay Act permits gender discrimination if based on a factor other than gender.90 The ADEA grants a similar provision to employers with regard to age discrimination, but requires that the employer present reasonable factors other than age to justify her actions, rather than simply neutral factors.91 The analogy likely achieves its intended result-to show that the ADEA precludes disparate impact-but it may also have another result: to dilute the meaning of the word "reasonable" as used in the ADEA. If the Equal Pay Act and the ADEA are linguistically similar, and the Equal Pay Act requires only a neutral factor, then it follows that the term "reasonable" may have little or no substantive meaning. Such an argument may at first seem speculative at best, but the text of the Adams opinion unfortunately bears it out.

In footnote six to its decision, pertaining to its ADEA/Equal Pay Act analogy, the Eleventh Circuit specifically recognizes the difference between the "neutral factor" and "reasonable neutral factor" language, as well as the possibility that the difference could distinguish the two provisions and render the analogy ineffective.92 The court concludes, however, that the difference is not sufficient to preclude its analogy.93 In making this determination, the court implicitly questions the difference between a "reasonable factor" and a mere "factor" and concludes that the difference is at least minimal enough for its analogy to proceed. If the difference between the two provisions is so minimal, then it follows that the term "reasonable," in the court's eyes, has no real substantive meaning. As such, the court has suggested an interpretation of the term "reasonable" that substantially limits its meaning and application, just like the tripartite burden-scheme. Further credence to this argument is lent by the fact that it is not unheard of for courts to dilute the term "reasonable"; indeed, as already noted, courts have a history of doing so.

Vost-Adams cases have not relied on the Eleventh Circuit's ADEA/Equal Pay Act analogy to lessen an employer's burden of proof.94 That analogy, however, is nevertheless troubling because it illustrates judges' willingness to dilute the reasonable factors exception through means other than the application of Title VII burden-shifting; instead of using that burden-shifting scheme, the Eleventh Circuit noted that the term "reasonable," as used in the ADEA's reasonable factors exception, has potentially less meaning than the plain language of that term suggests. The fact that that interpretation has not yet been applied in other cases does not lessen its import as an indicator of judicial willingness to marginalize that term. As noted in the following section, there are significant problems with limiting the reasonable factors exception by any method: first, the application of Title VII burden-shifting to the ADEA rests on unsound analysis; and second, diluting the reasonability requirement would severely handicap future disparate treatment plaintiffs-a result that flies in the face of Congress's intent in passing the ADEA. This section will address those points in turn.