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

C. Problems with Diluting the Reasonability Requirement

1. The reasoning behind applying Title VII burden-shifting is unsound

The reasoning behind applying Title VII burden-shifting is susceptible to criticism. That scheme originated in McDonnell Douglas Corp. v. Green,95 which found that, in a Title VII claim, a defendant may rebut a plaintiff's prima facie case by presenting a "legitimate, nondiscriminatory reason" for the defendant's action.96 Later, several circuit court cases held that McDonnell Douglas's Title VII burden-shifting rule was applicable in ADEA contexts.97 Then, in Reeves v. Sanderson Plumbing Products., Inc.,98 the Supreme Court applied Title VII burden-shifting to decide an ADEA case.99 Numerous cases have relied on Reeves as a justification for applying Title VII burden shifting to ADEA cases,100 but it should be noted, however, that in Reeves, the Supreme Court assumed without deciding that the burden-shifting rule in McDonnell Douglas applies to ADEA cases because the parties did not dispute the issue.101 Indeed, in that case, the Court was not called upon to determine the applicability of the McDonnell Douglas test to the ADEA.102 The Court never considered the legal merits of such an application. Moreover, a Title VII burden-shifting analysis is simply not transferable to the ADEA; the provision on which an employer's burden of proof should turn in an ADEA case-"reasonable factors other than age"-does not exist in Title VII.103 The plain language of the ADEA requires a defendant employer to present evidence of reasonable factors other than age; because Title VII has no similar provision, the burden-shifting scheme employed in those cases does not result in the harm that it does in ADEA cases because Title VII provides no statutorily-defined standard that a defendant employer must meet in making its defense.

There is no need to criticize the Supreme Court's Reeves decision; the Court decided only the issue before it and made an inference, without deciding, to which the parties implicitly consented. The decisions deserving criticism were made by the circuit courts that view Reeves as giving legitimacy to a practice that had evidently been in place long before that case was decided.104 Those decisions have laid the groundwork for virtually every circuit to apply Title VII burden shifting in assessing an employer's rebuttal of an ADEA plaintiffs prima facie case.105

2. Diluting the reasonability requirement would frustrate legitimate disparate treatment claims in contravention of congressional intent

Diluting or removing the reasonability requirement in any case would severely handicap future age discrimination plaintiffs from recovering under the ADEA. As noted, applying Title VII burden shifting to ADEA cases would, in some cases, eliminate the requirement that a defendant employer defend its actions by presenting evidence of "reasonable factors other than age."106 In those cases, an employer could escape liability simply by raising an issue of material fact rather than actually presenting the statutorily-required reasonable factors. Similarly, under the Eleventh Circuit's view, the term "reasonable" is so diluted that an employer could escape liability simply by presenting evidence of "neutral" factors other than age.107