In spite of two recent Supreme Court cases that ostensibly rein- stated a more expansive interpretation of discrimination under the Age Discrimination in Employment Act (ADEA), the protection that the ADEA affords still faces the same danger that threatened it before these decisions. In Smith v. City of Jackson, the Supreme Court held that the ADEA was designed to attack practices that have a disparate impact on older employees, unless such practices are justified by a "reasonable factor other than age." This Article will examine the possible meanings of “reasonable factors other than age” and suggest a solution. Part II will briefly describe the ADEA generally. Part III will examine the recent Supreme Court cases that have addressed RFOA. Part IV will explore the possible meanings of RFOA by reviewing the hierarchy of employment discrimination defenses. Part V will fit RFOA into the hierarchy and investigate recent judicial interpretations. Part VI will explain the solution, which is to require employers to justify criteria that obviously impact older workers, such as seniority and higher salary. Part VII will conclude.
Judith J. Johnson, Reasonable Factors Other Than Age: The Emerging Specter of Ageist Stereotypes, 33 SEATTLE U. L. REV. 49 (2009).