David Kadue Quoted in HR Magazine

David is quoted in the September 2005 issue of HR Magazine: "Earlier this year, the U.S. Supreme Court answered a question regarding the Age Discrimination in Employment Act (ADEA) that had been in dispute among federal courts for years: Can employees bring an ADEA claim challenging an employer's neutral practice that has a disproportionately negative impact on persons age 40 and above? The answer from the high court was a definitive "yes." . . . The ruling means that workers are now able to sue--anywhere in the country--on the theory that their employer's actions caused unintentional age discrimination, otherwise known as disparate impact. But the high court also ruled that employers can overcome such suits by proving that the practice in dispute is based on a reasonable factor other than age (RFOA). . . . Overall, however, the increased risk of being sued on this basis should not be enough to keep HR professionals awake at night.

"I see some small marginal impact on what businesses do, but not terribly significant," says David Kadue, a Seyfarth Shaw partner in Los Angeles and co-author of a legal treatise on age discrimination in employment. "HR professionals should do exactly what they have been doing." That, says Kadue, is to make decisions for good business reasons and to make sure that they're well documented. "It's not good ... to be arbitrary or unreasonable or capricious with respect to decisions that have an impact on older workers."

Some employers might be tempted to conduct an RIF for other reasons, such as cutting employees who make the most money--often, older workers. Is that reasonable or unreasonable? . . . "I think it would be a huge mistake to rely on salary alone without any further consideration of whom to dismiss. Incredibly stupid," says Kadue. "If you're not considering any alternatives [to salary], on some level you're being unreasonable." That doesn't mean it doesn't happen though. "I think it's relatively common for employers to rely on salary," says Kadue. "It was considered common enough that the California legislature said you can't rely on salary if doing so has an adverse impact on older workers."