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

It is wise here to make a distinction in order to avoid a fatal inconsistency in this Note's argument. The reasonability required of an employer to defend itself against a claim does not bear on the kind of harm inflicted upon a plaintiff, but rather upon the level of proof the employer must submit to justify its actions. As such, any harm resulting from the dilution of the ADEA's reasonability requirement, whether that dilution is a result of the improper application of Title VII burden shifting or an improper analogy, falls on those claiming disparate treatment, not disparate impact, as the basis for their claim, for, as already noted, the ADEA does not recognize disparate impact. This distinction is necessary to avoid the obvious inconsistency of first arguing that the ADEA precludes disparate impact, and in turn arguing that the Eleventh Circuit's decision unfairly limits plaintiffs' recourse for age discrimination.108

Making it more difficult for disparate treatment plaintiffs to prevail is inconsistent with the congressionally-stated purpose of the ADEA. Congress intended that Act "to promote employment of older persons based on their ability rather than age" and "to prohibit arbitrary age discrimination in employment."109 In so stating, Congress clearly intended to allow liability for the disparate treatment of workers based on age.110 That is the rule Congress set forth, and it is subject only to the exclusion of disparate impact, defined as behavior motivated by "reasonable factors other than age." Any dilution or elimination of the term "reasonable," as used in the ADEA, therefore flies in the face of this goal. Such a dilution would lower the standard that an allegedly infringing employer would have to meet to justify its actions, making it easier for that employer to escape the very liability Congress intended to impose on discriminating employers.

V. THE ANALYSIS THE ELEVENTH CIRCUIT SHOULD HAVE APPLIED

The Eleventh Circuit could have avoided participating in the trend to dilute the reasonable factors exception by relying on the plain language of the ADEA. This section will first make the plain language argument that the court should have made. It will then demonstrate that that analysis is consistent with Supreme Court statements on the issue, the ADEA's legislative history, and the Eleventh Circuit's refusal to analogize between Title VII and the ADEA.

A. The Plain Language of the ADEA

The main point of contention in interpreting the plain language of the ADEA lies in section 623(f)(1), which permits otherwise discriminatory behavior if (1) "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business" (the business necessity defense); (2) "where the differentiation is based on reasonable factors other than age"; or (3) "where such practices involve an employee in a workplace in a foreign country, and compliance [with the Act] would cause such employer . . . to violate the laws of the country in which such workplace is located."111 Those that would accept disparate impact in ADEA jurisprudence hold that section 623(f)(1) is merely a codification of the recognized business necessity defense.112 That argument "is based on the premise that Congress did not intend to prohibit age discrimination in [section] 623(a) and then approve of differentiation on the basis of age in [section] 623(f)(1)."113 Thus, those that would admit disparate impact into ADEA jurisprudence see the business necessity exception as swallowing the reasonable factors exception, indeed, making all three exceptions "bona fide occupational qualification[s] reasonably necessary to the normal operation of the particular business"114 and giving the "reasonable factors" exception no meaning independent from the business necessity exception.