Employee Rights and Employment Policy Journal

Rosenblum’s scattergun attack on our analysis of the law of Downsizing reflects his failure to understand the "basics" of equal employment opportunity law. He does not dispute that downsizing plans with releases provide an umbrella which insulates employers from risks of Title VII, ADEA, ERISA and State law liability, or that these plans frequently fail to achieve their stated objectives. He argues that downsizing decisions should be immune from judicial scrutiny because they are tied to globalization. "Globalization" is not a talisman exempting downsizing from judicial review under the disparate impact doctrine. The effort to dehumanize work by treating it as "almost indistinguishable" from physical capital and land is inconsistent with the extensive legal recognition of workers rights. Rosenblum would limit the disparate impact doctrine to situations where statistically significant differences are found among persons with similar qualifications. But one purpose of the disparate impact doctrine is to test the validity of these very qualifications. Rosenblum then challenges the "4/5ths or 80% rule establishing disparate impact as inconsistent with recent Supreme Court decisions on the admissibility of "scientific" evidence. But the definition of disparate impact is a judicial question, answerable on a case by case basis in which the "4/5ths" rule is one appropriate method of examination. He then contends that individual decisions to discharge in downsizings are based on objective considerations, relying on his experience in litigation. This argument confuses after-the-fact justifications with the reality of a decision which necessarily includes much subjectivity—who will "fit" better in a new organizational structure that does not yet exist, to perform a new constellation of functions that have not yet been fully defined. Finally, he contends that the ADEA does not incorporate the disparate impact doctrine, even after the 1990 amendments. Yet the OWBPA waiver provisions can serve their congressionally mandated purpose only under the disparate impact doctrine. The decisional law supportive of disparate impact as of 1990 may thus be considered as settled and incorporated by Congress when it adopted the OWBPA.