SCOTUSBlog tells us that the 2nd Circuit Court of Appeals’ decision in a case called Meacham v. Knolls was the subject of what’s called a “petition for certiorari” - or “cert petition” for short - earlier this month. This the necessary procedural step that puts in motion the consideration of the case for a formal appeal by the U.S. Supreme Court. The Supreme Court can then deny the petition for cert (”deny cert”) or grant it (”grant cert”). If granted, the appeals process will move on to briefs, and usually oral arguments (though some cases can be heard without orals, if the Justices feel the oral argument process isn’t necessary).

The Meacham case centers around the federal law that prohibits age discrimination in employment (called - what else? - the Age Discrimination in Employment Act  or ADEA).  This federal law, as with many antidiscrimination statutes, provides that it “shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). Basically, this is the employer’s defense - it has to prove that, while it arguably did treat older workers differently than younger workers, the real reason for that difference in treatment had nothing to do with age but was based on other factors.

The issues in the case are framed in the portion of the appeal papers called the “questions presented” - and they are:

1. Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the “reasonable factors other than age” defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission.

2. Whether respondents’ practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a “reasonable factor other than age” as a matter of law.
What does that mean? In plain(er) English:

1. Who has to persuade the court (or jury) that the reasonable factors existed, or didn’t exist? Does the plaintiff have to prove that they didn’t exist, or that they were pretextual, or does the employer have to prove that they did?
2. If an employer lets its middle managers decide, as a matter of policy, who goes and who stays in a workplace reduction in force (RIF), is that policy alone one of those “reasonable factors” which would absolve the employer of liability under ADEA?

Interesting case - it’ll be interesting to see whether the Supremes take it. There seems to be a split in the circuits as to the first question, which generally weighs in favor of the Supremes taking a case.