In August 2006 the 2nd Circuit ruled in two cases that have implications for adverse impact in the Age Discrimination in Employment Act (ADEA) (Meacham v. Knolls Atomic Power Laboratory [KAPL]; on August 14) and adverse impact in Title VII (Gulino v. New York State Education Department; on August 17). The Supreme Court invited the solicitor general to submit briefs expressing the views of the Bush administration in both bases. As this column was being written, the Supreme Court has decided to review Meacham.
The Meacham case is of particular interest to the TIP audience because it centers on the meaning of the Reasonable Factors Other than Age (RFOA) statutory defense recently supported by the Supreme Court in Smith v. City of Jackson (2005) in ADEA adverse impact cases. Specifically, this case will force the Court to consider whether the defendant has a burden of production or persuasion when the RFOA defense is invoked. The Gulino case is of particular interest to the TIP audience because the adequacy of content validity evidence in high stakes testing is at the core of the claim. Additionally, the question of who is liable when one organization develops a test and another uses it is also a central issue in Gulino. Further, the Supreme Court hasn’t ruled on an adverse impact case under Title VII in almost 2 decades. Both cases are important and speak to unanswered questions dating back to the Wards Cove era.