In spite of two recent Supreme Court cases that ostensibly reinstated a more expansive interpretation of discrimination under the Age Discrimination in Employment Act (ADEA), the protection that the ADEA affords still faces the same danger that threatened it before these decisions. The courts, including the Supreme Court, have been allowing employers to interpose defenses that correlate so strongly with age that they can be used as thinly veiled covers for discrimination. If the Court is serious about enforcing the purpose of the ADEA, it must interpret the “reasonable factor other than age” (RFOA) defense to protect older employees from discrimination by requiring employers to justify adverse actions that use age-correlative criteria such as greater seniority, higher position or salary, higher healthcare costs, proximity to retirement, or retirement status. The ADEA was designed to preclude consideration of these factors, or at least to require that they be closely scrutinized.
33 Seattle U.L. Rev. 49 (2009).