Yesterday the Supreme Court officially opened its 2012-2013 term. The justices denied review of 304 cases, including 48 employment-related decisions. One of these cases is particularly significant for Kansas employers. 

On March 29 The U.S. Equal Employment Opportunity Commission (EEOC) issued the "Final Regulation on Disparate Impact and Reasonable Factors Other than Age" (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).  The final rule clarifies the EEOC's position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age. 

The rule responds to two Supreme Court decisions in which the Court criticized one part of the EEOC's existing ADEA regulations. The Court upheld EEOC’s longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional.  However, it disagreed with the part of the regulations that said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.”  The Court said that, in an ADEA disparate impact case, the employer did not have to prove business necessity; it need only prove that the practice was based on an RFOA. The Court also said that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA.

In issuing the new rule, the EEOC tried to make its regulations consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity.  For a more-detailed      Continue Reading...

One perk of being on the U.S. Supreme Court is that you get to decide which cases you want to hear and which ones you don’t. Most cases cannot be appealed to the Supreme Court as a matter of right. So a losing party seeking Supreme Court review must file a petition for writ of certiorari, which must be granted by at least four of the nine Justices. (In case you're wondering, which you probably aren't, "certiorari" is a Latin word meaning "to be more fully informed.") The Court “grants cert.” to only about one percent of the petitions.

Today the Supreme Court agreed to review one employment-law case and declined to review another. The High Court agreed to review the high-profile case involving the 2010 Arizona immigration law that has been copied by several other states. The Court will decide whether federal immigration law preempts a state immigration law that, among other things, makes it a crime for an undocumented alien to seek employment. However, the Supreme Court declined to review a Tenth Circuit Court of Appeals ruling that federal sector Age Discrmination in Employment Act (ADEA) claims are subject to the same "but for" causation standard as private sector ADEA claims.