Employee Rights and Employment Policy Journal

The Prerogative To Downsize: A Commentary on Blumrosen, et. al.

By
Marc Rosenblum

Abstract

This commentary addresses an article by Blumrosen et al that appeared in the previous issue of this Journal. That article identifies downsizing-related terminations as a significant workplace problem, and recommend that plaintiffs in ADEA class termination cases rely on simple differences in the proportion of employees terminated or retained by age to establish prima facie proof of discrimination. The Commentary points out that both under currently interpreted EEO law covering analytical proof and statistics, as well as the Federal Rules of Evidence, such comparisons will not satisfy plaintiff's prima facie burden. Only where ADEA class comparisons are refined to cover employee performance, productivity, and similar factors in addition to age, per se, can they constitute a sufficient quantum of evidence to satisfy the prima facie proof standard.