14 Penn Plaza LLC Et Al., v. Steven Pyett Et Al., 2009 U.S. LEXIS 2497

In this 5-4 decision, the United States Supreme Court, with Justice Thomas writing for the majority, held that a provision in a collective bargaining agreement (CBA) that required the arbitration of discrimination claims brought pursuant to the Age Discrimination in Employment Act (“ADEA”) was enforceable against individual union members.

Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. 2395 (2008)

The provisions setting forth the general prohibition of age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 623(a)-(c), (e), are subject to a separate provision, § 623(f), creating exemptions for employer practices “otherwise prohibited under subsections (a), (b), (c), or (e).” This provision sets forth two exemptions, for practices based on “bona fide occupational qualifications” (BFOQ) or on “reasonable factors other than age” (RFOA), stating: “It shall not be unlawful for an employer . . . to take any action otherwise prohibited under subsections (a), (b), (c), or (e) . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age.” In Meacham v. Knolls Atomic Power Laboratory, the United States Supreme Court held that this RFOA exemption is an affirmative defense, and that an ADEA defendant seeking to avail itself of this exemption bears the burden of proof: it “must not only produce evidence raising the defense, but also persuade the factfinder of its merit.”