Rehabilitate the Age Discrimination in Employment Act: Resusciate the 'Reasonable Factors Other than Age' Defense and the Disparate Impact Theory

Contrary to earlier interpretations of the Age Discrimination in Employment Act, courts are currently allowing an employer to use age-correlated factors, such as seniority and high salary, to make unfavorable employment decisions. Most courts now hold that age-correlated factors are no longer probative at all of disparate treatment and that the disparate impact theory does not apply to the ADEA. Courts are thus allowing employers to use age-correlated factors to cut older workers from the workforce with impunity.\nThis article proposes a solution containing two components that, working together, could help deter the unjustified use of agecorrelated factors that exclude older workers from the workforce. These components are (1) application of the disparate impact theory to the ADEA and (2) proper interpretation and application of the ADEA's "reasonable factors other than age" [RFOA] defense. The first component requires courts to apply the disparate impact theory to the ADEA, and thereby force the employer to justify the use of an age-correlated factor that would have a disparate impact on older workers. The employer's justification would implicate the second component of the solution, the ADEA's RFOA defense. Whether the case is based on disparate impact or disparate treatment, the employer should be required to bear the burden of persuasion that the use of an agecorrelated factor that selects out older workers, such as high salary, is justified as a "reasonable factor other than age." The Supreme Court has recently granted certiorari to decide whether the disparate impact theory applies to the ADEA; consequently, whether the ADEA can be resurrected as a viable vehicle for protecting older workers will soon be authoritatively determined. These legal issues, at bottom, ask whether we want a society in which older workers are disposable or, rather, valued.