Arguing for the petitioners, Kevin K. Russell told the justices that this case presents "a single important but narrow question" and argued that the ADEA unambiguously places the burden of proof for showing a reasonable factor other than age (RFOA) on the employer. Russell advanced three main points in support of this claim: first, the statute sets up the RFOA defense as an exception to liability; second, the RFOA provision appears in the middle of a sentence where it is sandwiched between two other affirmative defenses; and third, the ADEA's substantive prohibitions use language identical to that of Title VII, which does not require proof of unreasonableness as part of the plaintiff's case in chief. Justice Ginsburg quickly asked about the purpose of petitioners' proposed "double inquiry," first asking whether the challenged employment practice is a business necessity and then asking whether it was based on a reasonable factor other than age. In response, Russell again pointed to the language of the statute, answering that this simply "arises out of the structure of the statute as Congress wrote it."

The Chief Justice expressed concern that liability for age discrimination should be "narrower" than liability under Title VII for discrimination on the basis of age or sex. Russell responded that Congress has already acknowledged and addressed this concern in two ways. First, it provided employers in age discrimination cases with the RFOA defense, "a capacious defense that's not available to any other defendant in a Federal employment discrimination statute." Second, Congress "lowered the bar for Title VII plaintiffs [in the Civil Rights Act of 1991] and left in place the Wards Cove test for age discrimination."

Justice Alito then pressed Russell on whether his proposal would allow plaintiffs to evade the requirement that they show an adverse effect "because of . . . age." Russell argued that ""because of age' refers to . . . the effect of" the employment practice, rather than the practice itself. He illustrated this difference with the example of a weight-lifting requirement: an employer might require all of its employees to be able to lift fifty pounds, and this would have a disparate impact felt more heavily by older workers because of their age, yet it is a separate question whether this practice is reasonable or not given the nature of the job.

Russell faced several questions from Justice Kennedy asking why employers should bear the full burden of persuasion, rather than a mere burden of production. Russell said that placing the burden of persuasion on the plaintiff would pose some difficulties, but that "ultimately I think [it's] beside the point" because the language of the statute unambiguously establishes an affirmative defense with the full burden on the employer. Searching for a policy rationale for allocating the burdens this way, Justice Kennedy questioned whether this interpretation of the statute would yield a result which "doesn't make sense." "[I]f I find the text of the statute neutral or at least not clear," he asked, "this it is proper for me to ask as a matter of efficiency where the burden should be placed, isn't it?"

Pressed on this question, Russell honed in on the point that "most of the facts going to reasonableness are in the employer's possession." The Chief Justice suggested that this problem can be addressed by liberal discovery rules, but Russell stuck to his position, arguing that the Chief Justice's objection would apply to every case in which informational disadvantages are at issue, but yet many statutes still address such disadvantages by providing affirmative defenses. In any case, Russell argued, the statute at issue here is clear, and even if the Court found it ambiguous (as Justice Kennedy suggested he might), it should defer to the judgment of the EEOC.

Representing the United States as amicus curiae, Daryl Joseffer of the Solicitor General's office echoed the petitioners' textual arguments, pointing both to the statute's use of the phrase "otherwise prohibited" and to the placement of the RFOA provision between two other affirmative defenses. When Justice Kennedy asked for some authority for the claim that adjacent provisions should operate in a similar way, Justice Scalia stepped in to suggest that petitioners' reading might be supported by a form of noscitur a sociis: "if it's in with two other chickens, it's probably a chicken."

Justice Alito again asked what to make of the requirement that plaintiffs show discrimination "because of age." Like petitioners, Joseffer argued that this requires only that plaintiffs have suffered an adverse effect on the basis of age, not that the challenged employment practice have actually taken age into account. This reading "has to be the case because disparate impact is not based on intent." Moreover, a more demanding interpretation of the "because of age" requirement would fail to make sense of the statute, Joseffer explained, because it would treat the "more specific" RFOA provision as "essentially surplusage."

Joseffer also pointed out that in every civil rights statute Congress has passed since Wards Cove, it has expressly placed the burden of persuasion during the "justification stage" on the defendant. Justice Ginsburg asked whether this construction would create a more generous standard for plaintiffs in age discrimination suits than Title VII race or sex discrimination cases, and Joseffer insisted that this would not be the case because the reasonableness standard is "not very daunting."

Arguing on behalf of respondent KAPL, Seth A. Waxman began by embracing the "three-step balance-shifting paradigm" that the Court has established for many employment discrimination cases, but emphasized that these cases have only required employers to meet a burden of production, not a burden of persuasion. Because age is often closely correlated with legitimate employment characteristics, Waxman argued, a showing of disparate impact on older workers merely establishes a "presumption which . . . need be met only by a burden of production."

Justice Stevens pressed Waxman to explain how his view of the statute could accommodate its use of the phrase "otherwise prohibited." Waxman explained that as he reads this statute, "it means nothing other than it's prohibited subject to the following conditions."

Waxman further argued that unlike most other affirmative defenses, the RFOA provision is not in the nature of confession and avoidance. But this argument faced considerable resistance from Justice Souter, who suggested that an employer invoking the RFOA defense would confess "I admit the impact falls more heavily on the old" and be seeking to avoid liability nonetheless. Justice Stevens and Chief Justice Roberts also chimed in with similar questions.

Waxman spent a considerable amount of time discussing the details of the record below. He faced brief questioning from Justice Ginsburg over the prospect that the subjectivity involved in judgments of "criticality" and "flexibility" could have opened the door to "at least unconscious age bias," but Waxman argued that there is nothing wrong with relying on human judgment. Justices Stevens and Ginsburg also clarified the procedural posture of the case, noting that unlike in Smith, this case has gone through trial and a jury verdict that was upheld against challenges to the sufficiency of the evidence.

In a brief rebuttal, Russell reiterated his arguments about "because of age" and offered his own clarifications of the record below, asking the Court to either remand to the court of appeals for further proceedings or to reverse the Second Circuit decision outright.

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