An employer defending a disparate-impact claim under the Age Discrimination in Employment Act bears the burden of producing evidence for a “reasonable factors other than age” affirmative defense, and also has the burden of persuading a fact finder of the reasonableness of the factor, the U.S. Supreme Court rules.

A defense contractor who had to select employees for layoff scored them based on three scales, “performance,” “flexibility,” and “critical skills.” The scores were summed, along with points for years of service, and the totals determined who should be let go. Of the 31 salaried employees laid off, 30 were at least 40 years old, and 28 of them sued, raising a disparate impact (discriminatory result) claim under the ADEA.

A provision of the ADEA creates an exemption for employer actions “otherwise prohibited” by the ADEA but “based on reasonable factors other than age.” The question before the Court was whether an employer facing a disparate-impact claim and planning to defend on the basis of RFOA must not only produce evidence raising the defense, but also persuade the fact finder of its merit. The Court holds that the employer must do both under the law. Meacham v. Knolls Atomic Power Laboratory.