U.S. Supreme Court Opinions: July 7, 2008

Daily Record, The (Baltimore), Jul 7, 2008

Nothing in [section]623(f)(1) suggests that Congress meant it to march out of step with either the general or specifically FLSA default rules placing the burden of proving an exemption on the party claiming it. Any further doubt would be dispelled by the natural implication of the "otherwise prohibited" language prefacing the BFOQ and RFOA defenses.

Here, Knolls argued that because the RFOA clause bars liability where action is taken for reasons "other than age," it should be read as mere elaboration on an element of liability. But City of Jackson confirmed that [section]623(a)(2)'s prohibition extends to practices with a disparate impact, inferring this result in part from the presence of the RFOA provision. 544 U.S., at 239, 243. And City of Jackson made it clear that action based on a "factor other than age" is the very premise for disparate-impact liability, not a negation of it or a defense to it. Thus, it was assumed that a non- age factor was at work in such a case, and the focus of the RFOA defense was on whether the factor relied on was "reasonable."

The business necessity test has no place in ADEA disparate- impact cases; applying both that test and the RFOA defense would entail a wasteful and confusing structure of proof. The absence of a business necessity enquiry does not diminish, however, the reasons already given for reading the RFOA as an affirmative defense.

City of Jackson cannot be read as implying that the burden of proving any business-related defense falls on the plaintiff, for it confirmed that the BFOQ is an affirmative defense, see 544 U. S., at 233, n. 3. Moreover, in referring to "Wards Cove's interpretation of identical language [in Title VII]," City of Jackson could not have had the RFOA clause in mind, for Title VII has no like-worded defense. And as Wards Cove did not purport to construe any Title VII defenses, only an over-reading of City of Jackson would find in it an assumption that Wards Cove has anything to say about statutory defenses in the ADEA.

City of Jackson confirmed that an ADEA disparate-impact plaintiff must "'isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities'." 544 U.S., at 241. That is not a trivial burden, and it ought to allay some of the concern that recognizing an employer's burden of persuasion on an RFOA defense will encourage strike suits or nudge plaintiffs with marginal cases into court; but in the end, such concerns have to be directed at Congress, which set the balance by both creating the RFOA exemption and writing it in the orthodox format of an affirmative defense.

Labor & Employment

Federal pre-emption

BOTTOM LINE: California statutes prohibiting grant recipients and certain private employers from using funds to assist, promote or deter union organizing were pre-empted by the National Labor Relations Act.

CASE: Chamber of Commerce of the United States, et al. v. Brown, Att'y Gen. of California, et al., No. 06-939 (decided June 19, 2008) (Justices Roberts, STEVENS, Scalia, Kennedy, Souter, Thomas & Alito) (Justices Ginsburg & Breyer, dissenting).