Defending Your Reduction In Force

In Smith v. City of Jackson (544 U.S. 228 (2005)), the U.S. Supreme Court held that adverse impact claims are available under the Age Discrimination in Employment Act (ADEA).

However, the Supreme Court also held that, when a plaintiff establishes adverse impact, the employer's defense differs from that under Title VII of the Civil Rights Act of 1964. For years, it has been unclear exactly what this means.

Under Title VII, an employer must establish "business necessity," a difficult burden to meet. In contrast, under the ADEA, the Supreme Court said a different defense may apply: "a reasonable factor other than age." While the Supreme Court said that the reasonable factor other than age defense was a lesser burden to satisfy than business necessity, it left undefined what the employer must establish to meet the defense.