Meacham v. Knolls Atomic Power Laboratory - Oral Argument - April 23, 2008

Meacham v. Knolls Atomic Power Laboratory

Media for Meacham v. Knolls Atomic Power Laboratory

Audio Transcription for Opinion Announcement - June 19, 2008 in Meacham v. Knolls Atomic Power Laboratory

Audio Transcription for Oral Argument - April 23, 2008 in Meacham v. Knolls Atomic Power Laboratory

John G. Roberts, Jr.:

We'll hear argument next in Case 06-1505, Meacham versus Knolls Atomic Power Laboratory.

Mr. Russell.

Kevin K. Russell:

Mr. Chief Justice, and may it please the Court: This case presents a single important but narrow question.

Everyone agrees that under the reasonable factor other than age provision of the Age Discrimination in Employment Act, a business practice that is reasonable is not unlawful even if it has a disparate impact on older workers.

The question here is simply what happens in cases in which the proof on reasonableness is in equipoise, which party bears the risk of nonpersuasion.

And on that question the statute is not silent such as to leave to the courts to decide for themselves what answer makes the most sense.

Anthony M. Kennedy:

Is there a hypothetical universe where a scheme that discriminates on the basis of age is reasonable, but there is another alternative that doesn't discriminate on the basis of age?

Is the first alternative still reasonable, or does the existence of a nondiscriminating alternative make it unreasonable?

Kevin K. Russell:

This Court made quite clear in City of Jackson that the existence of alternatives, while sufficient perhaps to satisfy Wards Cove and to show a violation under Section 4(a)(2), is not sufficient to show that the action is unreasonable.

And that's what the Court found to be the case in Smith.

So the standards are, in fact, quite different.

The reasonable factor other than age provision looks at the reasonableness of the actual, existing practice, and that's where the "because of age" refers to the business practice there.

It doesn't--

Anthony M. Kennedy:

If that's true, then is it necessary either on the burden of production or burden of persuasion aspect of the case to consider other alternatives?

Kevin K. Russell:

--It is in our view necessary in order to decide whether there is a--

Anthony M. Kennedy:

Why is it necessary in light of the answer you gave me at the outset?

Kevin K. Russell:

--It is necessary in order to establish whether you even get to the RFOA provision.

By its terms--

Anthony M. Kennedy:

Whether you even get to--

Kevin K. Russell:

--Even get to it, because by its terms the RFOA provision only applies to conduct that is otherwise prohibited by Section 4(a)(2), and the test for whether something is otherwise prohibited under Section 4(a)(2) is Wards Cove.

This Court in Smith said that language, which was identical to the language Congress used to describe the unlawful-employment practice in Title VII, has the same meaning in both statutes.

And in order to establish a violation of Wards Cove, you do have to often look at questions of alternatives.

Ruth Bader Ginsburg:

Mr. Russell, this is the problem that I have with your double inquiry.

First, you decide business necessity.

Then you decide reasonable factor other than age.

Once you determine that there is no business necessity, there is a readily available alternative, so what you're left with is a pretext for age discrimination, what... what function is there for anything else to perform?

I mean, I understand the business necessity, whether you have it pre-1991 or post, but I don't understand putting this other test on top of it.

It sounds like you're making it harder for the... for the plaintiff.

Kevin K. Russell:

Well, we think that the layering of the tests arises out of the structure of the statute as Congress wrote it.

If this Court disagrees with us, however, and thinks that there is room in the statutory language to treat the language of 4(a)(2) differently in some sense or to apply a different Wards Cove test, then you're still left with the question of who bears the burden of reasonableness.