Employers might assert that screening older physicians for cognitive impairment is based on an RFOA. (224) However, the ADEA demands (225) that the employer's RFOA is an accurately defined non-age factor that the employer applies "fairly and accurately." (226) Further, the employer must assess the adverse impact of the practice on older workers and take steps to reduce that harm.
The defendant-employer would likely claim that given its legitimate business interest to provide safe patient care, a screening program based on the RFOA of needing to assure that its physicians are not cognitively impaired is reasonably related to safe care.
Finally, if the employer uses age as the limiting criterion for the practice, as in this case where there is an established age in the policy when screening will begin, the RFOA exception to the ADEA would not be available to the employer.
84, 87 (2008) (holding that the RFOA defense is an affirmative one, for which employers bear the burdens of production and persuasion.).
Brown adds that by specifying criteria for the RFOA
defense, the rule makes summary judgment less likely.
(93) Following from that premise, Justice Stevens relied on Griggs, Hazen, the Equal Employment Opportunity Commission (EEOC) and Department of Labor's interpretations of Title VII and the ADEA, and the inclusion of the RFOA provision in the ADEA to find that a disparate impact theory of liability is available under the ADEA.
Finally, Justice Stevens reasoned that the inclusion of an RFOA provision in the ADEA did not make sense unless a disparate impact theory of liability was cognizable under the Act.
(109) Additionally, the Court focused on the inclusion of the RFOA provision in the ADEA and its absence from Title VII.
Justice Scalia concurred in the judgment and joined all of Stevens's opinion except the portion using Griggs, textual similarities between the ADEA and Title VII, and the existence of the RFOA provision in the ADEA as independent justifications for finding disparate impact liability under the ADEA.
For some or all of the following reasons, Smith could not salvage plaintiffs' disparate-impact claims: plaintiffs failed to provide the statistical foundation necessary for establishing a prima facie case; (160) plaintiffs failed to identify with specificity the policy or practice responsible for the alleged disparate impact; (161) or the RFOA provision justified the employers' action and barred the claim.
(172) Relying on the Smith Court's narrow interpretation of the RFOA provision, the court reasoned that "an employer that decides to terminate an employee to relieve itself of the burden of that employee's high salary or health care costs has based its decision on 'reasonable factors' other than the employee's age." (173)
Despite the high bar set by the Court's analysis of the ADEA's RFOA provision, the impact of Smith on pending cases has not been universally pro-defendant.