No. 11-10697 in the UNITED STATES COURT of APPEALS for the FIFTH CIRCUIT LARRY RANDALL POWELL; LAWRENCE WILLIAM DEORE; PAULA F

Home , KSKN, KVUE, Northwest Cable News, TXCN, WVEC

No. 11-10697

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LARRY RANDALL POWELL; LAWRENCE WILLIAM DEORE; PAULA F. WATSON; GARY VAN WEST; RAUL PREZAS REYES; TIMOTHY ARTHUR O'LEARY; JAN MICHAEL HUBBARD; MICHAEL S. COONS; JOHN PAUL CHAMLESS; IRA HADNOT ALEXANDER; DEBORAH SUE VOORHEES; LINSTON ROBERT LOFLEY; KAREN PATTERSON; LINDA JONES; GARY STRATTON; EWINA H. SCHUMACHER; PAULETTE LADACH; STEPHEN WAYNE YOUNT, Plaintiffs-Appellants

THE DALLAS MORNING NEWS, LP; BELO CORPORATION; BELO BENEFITS ADMINISTRATIVE COMMITTEE, as plan administrator for the G.B. Dealey Retirement Pension Plan and the Belo Savings Plan, Defendants-Appellees ______

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS ______BRIEF AMICUS CURIAE OF AARP IN SUPPORT OF PLAINTIFFS-APPELLANTS, SUPPORTING REVERSAL ______

Mary Ellen Signorille Melvin Radowitz AARP Foundation Litigation AARP 601 E Street, NW 601 E Street, NW Washington, DC 20049 Washington, DC 20049 (202) 434-2060 ATTORNEYS FOR AMICUS CURIAE AARP

CERTIFICATE OF INTERESTED PERSONS

(1) Larry Powell et al v. The Dallas Morning News, LP et al, No. 11-10697

(2) The undersigned counsel of record certify that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest on the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualifications or recusal.

Appellants: Larry Randall Powell Lawrence William DeOre Paula F. Watson Gary Van West Raul Prezas Reyes Timothy Arthur O’Leary Jan Michael Hubbard Michael S. Coons John Paul Chamless Ira Hadnot Alexander Deborah Sue Voorhees Linston Robert Lofley Karen Patterson Linda Jones Gary Stratton Ewina H. Schumacher Paulette Ladach Stephen Wayne Yount

Appellees: The Dallas Morning News L.P. Belo Corp. Belo Benefits Administrative Committee G.B. Dealey Retirement Pension Plan – not a party on appeal Belo Savings Plan – not a party on appeal Robert W. Decherd (Chairman of the Board – Belo Corp.) – not a party on appeal James M. Moroney III (Publisher – The Dallas Morning News, L.P.) – not a party on appeal

Affiliates of Belo Corp.: WFAA-TV KING-TV KHOU-TV KGW-TV KENS-TV KREM-TV KBEJ-TV KSKN-TV KVUE-TV KTVB-TV

KTVK-TV KMOV-TV KASW-TV WCNC-TV KMSB-TV WVEC-TV KTTU-TV WWL-TV WHAS-TV

The Dallas Morning News Texas Almanac Denton Record-Chronicle The Providence Journal Al Dia Rhode Island Weekly Quick The Press-Enterprise The Business Press La Prensa

This Week in the Desert

Belo Interactive

Texas Cable News (TXCN) Northwest Cable News (NWCN)

Amicus Curiae: AARP

Attorneys for Appellants: Karen G. Shropshire Howard C. Rubin Gary S. Kessler

Attorneys for Appellees: Robert E. Sheeder Christopher Lee Maberry J. Brett Busby

Attorneys for Amicus Curiae: Mary Ellen Signorille AARP Foundation

Mel Radowitz AARP /s/ Mary Ellen Signorille Mary Ellen Signorille

TABLE OF CONTENTS Page

CERTIFICATE OF INTERESTED PERSONS ...... i

TABLE OF AUTHORITIES ...... iv

INTEREST OF AMICUS CURIAE ...... 1

SUMMARY OF ARGUMENT ...... 2

ARGUMENT ...... 4

I. THE PRACTICE OF GIVING SUPERVISORS UNCHECKED DISCRETION TO ENGAGE IN SUBJECTIVE DECISION- MAKING IS A PROPER SUBJECT OF A DISPARATE IMPACT CHALLENGE UNDER THE ADEA...... 4

II. THE SUBJECTIVE FACTORS USED BY DEFENDANTS’ SUPERVISORS TO SELECT EMPLOYEES FOR TERMINATION ARE SUSCEPTIBLE TO THE INFLUENCE OF WELL-KNOWN AGE-RELATED STEREOTYPES ...... 6

III. THE DISTRICT COURT ERRED BY PLACING THE BURDEN ON PLAINTIFFS TO DEMONSTRATE THAT THE FACTORS USED BY DEFENDANTS TO SELECT EMPLOYEE FOR TERMINATION WERE UNREASONABLE .... 11

CONCLUSION ...... 14

CERTIFICATE OF SERVICE ...... 16

CERTIFICATE OF COMPLIANCE ...... 17

iii

TABLE OF AUTHORITIES

Cases

Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) ...... 15

Alexander v. Choate, 469 U.S. 287 (1985) ...... 7

Carroll v. Sears, Roebuck & Co., 708 F.2d 183 (5th Cir. 1983)...... 8

EEOC v. Francis W. Parker Sch., 41 F.3d 1073 (7th Cir. 1994) ...... 7, 9

EEOC v. Wyoming, 460 U.S. 226 (1983) ...... 13

Griggs v. Duke Power Co., 401 U.S. 424 (1971)...... 15

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) ...... 6 , 7, 8

Jenkins v. Caddo-Bassier Assoc. for Retarded Citizens, 570 F.3d 1227 (5th Cir. 1978) ...... 5

McClain v. Lufkin Indus.,Inc., 2005 U.S. Dist. Lexis 42545 (Jan. 13, 2005 E.D. Tex), aff’d in relevant part, 519 F.3d 264 (5th Cir. 2008)...... 5

McClain v. Lufkin Indus.,Inc., 187 F.R.D. 267 (E.D. Tex. 1999) ...... 5, 6, 8

McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995) ...... 14, 15

Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008) ...... 2, 3, 11, 14

Orzel v. Wauwatosa Fire Dep’t, 697 F.2d 743 (7th Cir. 1983)...... 11

Powell v. The Dallas Morning News, 776 F. Supp. 2d 240 (N.D. Tex. 2011)...... 11

Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88 (6th Cir. 1982) ...... 5

Smith v. City of Jackson, Mississippi, 544 U.S. 228 (2005) ...... 1, 4, 11, 12

Waltman v. Int’l Paper Co., 875 F.2d 468 (5th Cir. 1989) ...... 8

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) ...... 4, 12

Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ...... 3, 4, 5, 7, 13, 14

Statutes & Legislative History

Age Discrimination in Employment Act (ADEA)

29 U.S.C., § 621(a)(2) ...... 10

Age Discrimination in Employment: Hearings on S. 830 and S. 788 Before the Subcomm. On Labor and Public Welfare, 90th Cong. (1967) ...... 10

U.S. Dep’t of Labor, The Older Worker: Age Discrimination in Employment, Report of the Secretary of Labor Under Section 715 of the Civil Rights Act of 1964 (1965)...... 13

Other Authorities

Marc Bendick, Jr., Charles W. Jackson & J. Horacio Romero, “Employment Discrimination Against Older Workers: An Experimental Study of Hiring Practices,” 8(4) JOURNAL OF AGING & SOCIAL POLICY 25 (1996) ...... 6, 7

Howard Eglit, “The Age Discrimination in Employment Act’s Forgotten Affirmative Defense,” 66 BOSTON LAW REV. 155 (1986)...... 9

Lisa M. Finkelstein, Michael J. Burke & Nambury S. Raju, “Age Discrimination in Simulated Employment Contexts,” 80 JOURNAL OF APPLIED PSYCHOLOGY 652 (1995) ...... 6

Becca R. Levy, “Eradication of Ageism Requires Addressing the Enemy Within,” 41 THE GERONTOLOGIST 578 (Oct. 2001)...... 9

Veronica F. Nieva & Barbara A. Gutek, “Sex Effects on Evaluation,” 5 ACAD. OF MGMT REV. 267 (1980) ...... 8

Erdman B. Palmore, AGEISM: NEGATIVE AND POSITIVE (2d ed. 1999)...... 10

Charles W. Perdue & Michael B. Gurtman, “Evidence for the Automaticity of Ageism,” 26 JOURNAL OF EXPERIMENTAL SOCIAL PSYCHOLOGY 199 (1990)...... 10

INTEREST OF AMICUS CURIAE1

AARP is a nonpartisan, nonprofit membership organization of people age 50 and over that is dedicated to assuring that older Americans have independence, choice and control in ways beneficial and affordable to them and to society as a whole. One of AARP’s primary objectives is to achieve dignity and equity in the workplace. AARP seeks to eliminate stereotypes about older workers, encourage employers to hire and retain older workers, and to help older workers overcome obstacles in the workplace, including discrimination based on age.

Approximately half of AARP’s members are employed and are protected by the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights

Act of 1964, the Americans with Disabilities Act (ADA), and other employment laws. Vigorous enforcement of these and other work place civil rights laws is of paramount importance to AARP, its working members, and the millions of other workers of all ages who rely on them to deter and remedy illegal employment discrimination.

AARP filed an amicus curiae brief in the U.S. Supreme Court in Smith v. City of Jackson, Mississippi, 544 U.S. 228 (2005) in support of allowing age

1 No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae, their members, or their counsel made a monetary contribution to its preparation or submission.

1 discrimination victims to pursue disparate impact claims under the ADEA and another in Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008) urging the

Court to recognize that the statute’s “reasonable factor other than age provision”

(RFOA) is an affirmative defense for which the employer bears both the burdens of production and proof. AARP continues to advocate in the courts, in Congress, and in the regulatory arena to ensure that the disparate impact theory is a meaningful and effective method of challenging and eliminating age discrimination from the work place.

This case raises an important issue for ensuring that the disparate impact theory works effectively to combat age discrimination: whether undue reliance on subjective selection factors which are vulnerable to age-based stereotypes is a proper basis for a disparate impact claim under the ADEA. For these reasons, amicus curiae

AARP respectfully submits this brief in support of the Plaintiffs-Appellants.

SUMMARY OF ARGUMENT

The district court’s superficial interpretation of the ADEA’s RFOA provision allowed the Defendants to effortlessly satisfy the affirmative defense without offering any real proof that the selection criteria for the reduction-in-force were in fact

“reasonable.” The district court also erred by turning the holding in Meacham v.

Knolls Atomic Power Laboratory on its head by faulting the Plaintiffs for failing to demonstrate that the factors offered by the Defendants were unreasonable. In addition, the district court arbitrarily discounted Plaintiffs’ evidence that the 2

Defendants’ subjective criteria for selecting employees for termination were susceptible to the very problem the Supreme Court recognized as the “essence” of age discrimination -- age-based stereotyping.

Finally, the court mistakenly held that the Plaintiffs’ identification of the

Defendants’ practice of granting mangers unchecked discretion to make subjective

RIF termination decisions as the specific employment practice responsible for the disparate impact on older workers was “equivalent to a claim that the selection process for the RIF created a disparate impact.” To reach this erroneous conclusion, the court twisted the Plaintiffs’ actual allegations and construed clear precedent on subjective decision-making so narrowly so as to render it meaningless.

Allowing employers to merely articulate “other factors” with no corresponding meaningful obligation to prove that they are “reasonable,” renders bringing a disparate impact claim under the ADEA an exercise in futility. Such a “laissez-faire” reading of the RFOA provision erects an insurmountable hurdle to disparate impact challenges to subjective decision-making under the ADEA and conflicts with the

Supreme Court’s decisions in Meacham v. Knolls Atomic Power Laboratory and

Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988).

ARGUMENT

I. THE PRACTICE OF GIVING SUPERVISORS UNCHECKED DISCRETION TO ENGAGE IN SUBJECTIVE DECISION- MAKING IS A PROPER SUBJECT OF A DISPARATE IMPACT CHALLENGE UNDER THE ADEA.

As explained in Smith v. City of Jackson, to establish a claim of disparate impact based on age, “the employee is ‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.’” 544 U.S. 228, 241 (2005) (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989)) (emphasis in original). Plaintiffs met this burden.

Plaintiffs identified the subjective elements of DMN’s selection process for its

2004 reduction-in-force that caused a disparate impact based on age. Specifically, in their Third Amended Complaint, the Plaintiffs alleged that the “Defendants had a policy, practice or procedure of allowing managers and department heads to evaluate and select employees for termination without adequate, objective criteria or without adequate oversight or evaluation of the policy, practice or procedure or its implementation . . . .”

In Watson v. Fort Worth Bank & Trust, the Supreme Court held that an employer’s facially neutral practice of committing employment decisions to the subjective discretion of supervisory employees was a specific employment practice properly subject to a disparate impact analysis. 487 U.S. 977, 990 (1988). And,

4 although the district court mistakenly held otherwise in this case, the Watson Court also ruled that a system which incorporates a mixture of subjective and objective criteria should be treated as subjective. 487 U.S. at 989.

There have been numerous successful challenges to the use of subjective employment polices under both disparate treatment and disparate impact theories establishing that when managers are permitted to exercise unfettered subjective judgment, unconscious stereotypes are likely to influence decisions:

The mere presence of subjectivity does not raise an inference of discrimination. But when discretionary, subjective decision making is supplemented by evidence that subconscious stereotypes and prejudice operate in a vacuum created by the absence of objective, validated criteria, causation can be found.

McClain v. Lufkin Indus., Inc., 2005 U.S. Dist. Lexis 42545, at *18 (Jan. 13, 2005

E.D. Tex), aff’d in relevant part, 519 F.3d 264 (5th Cir. 2008). See also Rowe v.

Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 93 (6th Cir. 1982) citing Jenkins v. Caddo-Bassier Assoc. for Retarded Citizens, 570 F.3d 1227, 1229

(5th Cir. 1978) (“While we recognize that, in some circumstances, employment decisions may be made on the basis of such subjective criteria, any procedure employing such subjective evaluations will be carefully scrutinized in order to prevent abuse.”).

As established in Watson, an employer’s policy of committing employment decisions to the subjective discretion of its managers is a specific employment practice subject to a disparate impact analysis. See McClain v. Lufkin Indus., Inc., 5

187 F.R.D. 267, 273 (E.D. Tex. 1999) (“Discretionary authority over employment decisions without reference to objective guidelines can support a disparate impact claim.”). The district court’s conclusion that by challenging the Defendants’ excessive reliance on subjective criteria, the Plaintiffs’ essentially were challenging the RIF itself, is factually and legally incorrect and should be reversed.

II. THE SUBJECTIVE FACTORS USED BY DEFENDANTS’ SUPERVISORS TO SELECT EMPLOYEES FOR TERMINATION ARE SUSCEPTIBLE TO THE INFLUENCE OF WELL-KNOWN AGE-RELATED STEREOTYPES.

Stereotypes about older workers are ingrained and commonplace in our society. The Supreme Court has stated that “[i]t is the essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with age.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610

(1993).

Older workers are perceived as less creative, less flexible, more resistant to change, and disinterested in training even though empirical studies have demonstrated that there is often a positive or no statistically significant association between a worker’s age and many aspects of job performance. Lisa M. Finkelstein,

Michael J. Burke & Nambury S. Raju, “Age Discrimination in Simulated

Employment Contexts,” 80 JOURNAL OF APPLIED PSYCHOLOGY 652, 652 (1995). See also Marc Bendick, Jr., Charles W. Jackson & J. Horacio Romero, “Employment

Discrimination Against Older Workers: An Experimental Study of Hiring Practices,”

8(4) JOURNAL OF AGING & SOCIAL POLICY 25, 26 (1996) (“Despite evidence to the contrary, employment decisionmakers often assume that older workers are less energetic, motivated, creative, and productive than their younger counterparts. . . technologically obsolete and unwilling to change . . . ). The Defendants’ managers were instructed to evaluate employees based on undefined subjective factors that are vulnerable to some of these very stereotypes: “productivity,” “adaptability” and

“versatility.”

In Watson v. Fort Worth Bank & Trust, a plurality of the Supreme Court noted that the disparate impact theory of proof is necessary to “adequately police [ ] . . . the problem of subconscious stereotypes and prejudices.” 487 U.S. at 990 (1988).2

Given that the Supreme Court has acknowledged the reason the ADEA was enacted was because “older workers were being deprived of employment because of inaccurate and stigmatizing stereotypes,” Hazen Paper, 507 U.S. at 610, the most important function the disparate impact theory serves in the fight to eradicate age discrimination is to identify when subconscious stereotyping is adversely impacting older workers. See EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1080-81 (7th Cir.

1994) (emphasis in original) (“[T]he disparate impact theory of liability is designed as a means to detect employment decisions that reflect ‘inaccurate and stigmatizing

2 See also Alexander v. Choate, 469 U.S. 287, 292-99 (1985) (discussing the appropriateness of disparate impact analysis under § 504 of the Rehabilitation Act since discrimination against the handicapped often results from thoughtlessness not animus). 7 stereotypes,’ . . . this is precisely the determination that Hazen Paper says the ADEA is intended to outlaw.”).

Defendants concede that the selection factors, including “adaptability” and

“versatility” were not defined and that there were no written guidelines on how to apply them. As this Court has held, when the criteria used to make employment decisions are highly subjective, it is easier to discriminate. See Waltman v. Int’l

Paper Co., 875 F.2d 468, 482 (5th Cir. 1989); Carroll v. Sears, Roebuck & Co., 708

F.2d 183, 192 (5th Cir. 1983).

When the criteria used for evaluation are subjective and ambiguous, the potential for stereotyping is greater because ambiguous criteria are easier to distort on the basis of stereotypes. See McClain, 187 F.R.D. at 273 (holding that unfettered discretion unguided by any objective standards is “traditionally suspect.”). “The greater the amount of inference required in the evaluation situation, the more likely it is that evaluation bias will be found.” Veronica F. Nieva & Barbara A. Gutek, “Sex

Effects on Evaluation,” 5 ACAD. OF MGMT REV. 267, 270 (1980).

Actions based on stereotypes can be, and often are unintentional, and the disparate impact theory is particularly well-suited to detecting discrimination caused by unintentional stereotyping. After all, the premise of the disparate impact theory is that “not all discrimination is apparent and overt. It is sometimes subtle and hidden.

It is at times hidden even from the decisionmaker herself, reflecting perhaps

8 subconscious predilections and stereotypes.” EEOC v. Francis Parker Sch., 41 F.3d at 1080 (J. Cudahy, dissenting). This is especially true of age discrimination.

Using the disparate impact theory to ferret out stereotypes based on age is consistent with the research on the nature and causes of ageism.

Age distinctions are particularly unique because they so often are used thoughtlessly rather than as intentional expressions of invidious malice or even mildly bigoted intent . . . Because of this relatively innocuous nature of ageism, the likelihood is considerable that employers may adopt facially neutral polices without recognizing or caring that the policies may have a disparate impact upon older workers. Howard Eglit, “The Age Discrimination in Employment Act’s Forgotten Affirmative

Defense,” 66 BOSTON LAW REV. 155, 222 (1986).

There is a large body of research concerning unconscious age discrimination, also called “implicit ageism.” “’[I]mplicit ageism’ is defined as the thoughts, feelings, and behaviors toward elderly people that exist and operate without conscious awareness or control, with the assumption that it forms the basis of most interactions with older individuals.” Becca R. Levy, “Eradication of Ageism

Requires Addressing the Enemy Within,” 41 THE GERONTOLOGIST 578, 578 (Oct.

2001). In a related study, the authors explain:

Age-related biases . . . may have become so routinized that they may influence social judgments at a level below that at which we consciously ascribe traits to others. Such “automatic” ageism may be hard to eradicate if it has been incorporated into our implicit personality theories or social schemata and is evoked without awareness on our part.

Charles W. Perdue & Michael B. Gurtman, “Evidence for the Automaticity of

Ageism,” 26 JOURNAL OF EXPERIMENTAL SOCIAL PSYCHOLOGY 199, 201 (1990).

Unconscious ageism is pervasive in our society. “Ageism permeates our culture so thoroughly and conditions our attitudes and perceptions so much that most of us are unaware of most of the ageism in it.” Erdman B. Palmore, AGEISM: NEGATIVE AND

POSITIVE 98 (2d ed. 1999).

Given the tendency to make inaccurate age-based assumptions about an individual’s ability to perform a job, and bearing in mind the ADEA’s purpose of eradicating such assumptions3, any exceptions in the Act must be interpreted to advance rather than frustrate its purpose. So, while the RFOA defense contemplates that some policies that adversely impact older workers may be justified because they are based on age-neutral, job-related factors, “overuse of [an] exception involves the risk of reintroducing on a broad scale the very age stereotyping the ADEA was

3 The ADEA was enacted after a finding by Congress that “the setting of arbitrary age limits regardless of potential for job performance has become a common practice . . . .” 29 U.S.C. § 621(a)(2). The legislative history of the Act makes clear that the broad remedial purpose of the ADEA is to eliminate age-based stereotypes in favor of individualized employment decisions based on a person’s ability and capability. See Age Discrimination in Employment: Hearings on S. 830 and S. 788 Before the Subcomm. On Labor and Public Welfare, 90th Cong. 28 (1967) (statement of Sen. Jacob Javits) (“We must break down the wholly irrational barriers to employment based on age alone which have been permitted to hinder the older worker in a search for employment opportunity. The present age has been called an age where the cult of youth seems to prevail over everything else . . .[I]t will be our job to introduce a note of realism in that situation which will emphasize the ability and capability of the worker to do the job, rather than his age level, as the desirable criterion for American employment practices.”). 10 designed to prevent.” Orzel v. Wauwatosa Fire Dep’t, 697 F.2d 743, 748 (7th Cir.

1983).

III. THE DISTRICT COURT ERRED BY PLACING THE BURDEN ON PLAINTIFFS TO DEMONSTRATE THAT THE FACTORS USED BY DEFENDANTS TO SELECT EMPLOYEE FOR TERMINATION WERE UNREASONABLE.

After Smith v. City of Jackson made it clear that the disparate impact theory was available to age discrimination victims, there was still disagreement as to which party bore the burden of proof regarding the response to a disparate impact, i.e., that the policy or practice was based on a “reasonable factor other than age.” The question of “whether an employer facing a disparate-impact claim and planning to defend on the basis of RFOA must not only produce evidence raising the defense, but also persuade the factfinder of its merit,” was unequivocally resolved in

Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84, 87 (2008). In

Meacham, the Court held that the RFOA provision is an affirmative defense for which the employer bears both the burden of production and burden of persuasion.

Id.

Despite this clear directive, in granting summary judgment for DMN, the court below erroneously held that it was the Plaintiffs’ burden to “demonstrate[ ] that the factors offered by the Defendants are unreasonable.” Powell v. The Dallas Morning

News, 776 F. Supp. 2d 240, 247 (N.D. Tex. 2011) (emphasis added). This holding directly contravenes Meacham and accordingly must be reversed.

Contrary to the holding of the court below, it was the Defendants’ burden to prove that the factors they relied on to select employees for termination were

“reasonable.” Specifically, they had the burden of establishing that their selection factors “serve[d], in a significant way, the legitimate employment goals of the

[Defendants].” Wards Cove Packing Co. v. Atonio, 490 U.S. at 659. The

Defendants, however, offered no evidence that the factors they selected were reasonable or in any way related to the objectives of the reduction-in-force or the future of the organization. Instead, they inexplicably relied on subjective criteria susceptible to well-known age-based stereotypes and assumptions. They also failed to provide their managers with any training or written guidelines on how to apply the factors they selected and they offered no explanation as to why the factors were chosen in the first place. Thus, Defendants carried neither their burden of production or their burden of persuasion.

The district court’s unquestioning acceptance of DMN’s explanation for its selection process for the 2004 RIF transformed the ADEA’s RFOA provision from an affirmative defense for which DMN bore the burdens of both production and persuasion to exactly what the Supreme Court stated it should not be – “a safe harbor from liability.” Smith v. City of Jackson, 544 U.S. at 238. “Allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria

. . . disserve[s] [the ADEA’s] goal of eradicating discrimination in employment . . .

[and] encourage[s] employers to abandon attempts to construct selection 12 mechanisms subject to neutral application for the shelter of vague generalities.”

Watson v. Fort Worth Bank & Trust, 487 U.S. at 1011.

If plaintiffs must prove the absence of a “reasonable factor other than age,” as the court below improperly required in this case, the value of the disparate impact theory in ferreting the influence of subconscious stereotypes and prejudices on employment decisions is wholly negated. In EEOC v. Wyoming, the Supreme Court recognized that irrational employment decisions based on age stereotypes were “often defended on grounds different from [their] actual causes.” 460 U.S. 226, 231 (1983).

In his report to Congress that served as the basis of the enactment of the ADEA4,

Secretary of Labor, Willard Wirtz, made the same observation. U.S. Dep’t of Labor,

The Older Worker: Age Discrimination in Employment, Report of the Secretary of

Labor Under Section 715 of the Civil Rights Act of 1964, at 8 (1965) (Wirtz Report).

The Wirtz Report elaborated that “a great many age limitation policies are based in fact on considerations quite different from those offered as (and undoubtedly believed to be in many cases) their explanation.” Id. For example, the Wirtz Report identified the physical demands of a particular job in question as one of the age-neutral explanations offered by employers for excluding older workers, but noted as relevant, that “in determining the true basis for these age limitations which are explained in

4 Section 715 of the Civil Rights Act of 1964 directed the Secretary of Labor to “make a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected.” 13 terms of physical demands of the work . . . in 70 percent of the cases. . . no studied basis for this conclusion was reported.” Id.

The facts in this case graphically illustrate what the Supreme Court recognized in Meacham and Watson: It is unjust to require age discrimination victims to prove that the employer’s factors were “unreasonable.” For example, in a reduction-in- force case like this one, the employer is uniquely positioned to know what the organization seeks to achieve going forward and what its specific objectives for the work force reduction are. How retaining employees with the characteristics of

“adaptability” and “versatility” would help the organization meet these objectives and why those characteristics were deemed necessary for the future success of the organization is knowledge that the Defendants should have easily been able to produce. That knowledge was not available to Plaintiffs.

The court below ignored the Court’s directive in Meacham and failed to require the Defendants to prove that the allegedly age-neutral factors they relied upon were

“reasonable.” By doing so, the court leaves employers free to act based on undefined and completely subjective factors that can be used to disguise age-stereotyping and discriminate against older workers. Such reasoning is contrary to clear Supreme

Court precedent and must be reversed.

CONCLUSION

In McKennon v. Nashville Banner Publishing Co., the Supreme Court declared that “Congress designed the remedial measures in [the ADEA and Title VII] to serve 14 as a ‘spur or catalyst’ to cause employers ‘to self-examine their employment practices and, to endeavor to eliminate, so far as possible, the last vestiges’ of discrimination,”

513 U.S. 352, 358 (1995) quoting Albermarle Paper Co. v. Moody, 422 U.S. 405,

417-18 (1975). If district courts are allowed to countenance employers’ reliance on quintessential stereotypes about older workers, the last vestiges of age discrimination, rather than being eliminated, will likely become entrenched “operat[ing] to ‘freeze’ the status quo of prior discriminatory practices.” Griggs v. Duke Power Co., 401

U.S. 424, 430 (1971).

For the foregoing reasons, amicus curiae AARP respectfully submit that this

Court should vacate the decision of the district court granting summary judgment to the Defendants and the case should be remanded for further proceedings.

Dated: October 26, 2011 Respectfully submitted,

/s/ Mary Ellen Signorille Mary Ellen Signorille AARP Foundation Litigation

Melvin Radowitz AARP

601 E Street, NW Washington, D.C. 20049 Telephone (202) 434-2060 [email protected]

Attorney for Amicus Curiae AARP

CERTIFICATE OF SERVICE

I hereby certify that the Brief Amicus Curiae of AARP in Support of Plaintiffs-

Appellants, Supporting Reversal via this Court’s electronic filing system on October

26, 2011 on counsel of record listed below.

Robert E. Sheeder Bracewell & Giuliani LLP 1445 Ross Avenue, Suite 3800 Dallas, TX 75202-2711

Karon G. Shropshire Greer & Shropshire, L.L.P. 8117 Preston Road; Suite 300 Dallas, Texas 75225

Howard Rubin Kessler & Collins, P.C. 2100 Ross Ave, Suite 750 Dallas, Texas 75201

/s/ Mary Ellen Signorille Mary Ellen Signorille

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 3,572 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(A)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2007 in Times New Roman in 14-point size.

Dated: October 26, 2011 Respectfully Submitted,

/s/ Mary Ellen Signorille Mary Ellen Signorille