Denver partner Mary Birk authored an article, "RIFs: Use Statistical Analysis To Avoid Disparate Impact Based on Age," which was published in the April 2008 edition of Legal Report, a publication of the Society for Human Resource Management (SHRM).
According to Birk, "When an employer lays off workers in a reduction in force (RIF) for business reasons, it can become subject to age discrimination claims based on disparate impact by those employees who are aged 40 or over. Statistical analyses in RIFs are often used to show whether the termination of employees protected by the Age Discrimination in Employment Act (ADEA) occurred in a number that would have been expected to happen by chance or if there is a statistically significant difference that would show possible age discrimination. Increasingly, plaintiffs are using such statistical workforce analyses not only to obtain class-action certification and to overcome summary judgment motions in RIF age discrimination cases, but also in pattern and practice and single plaintiff cases."
Birk's article seeks to explain the use of statistics and how statistical analyses can be used to ensure that a contemplated RIF will survive an age discrimination disparate impact challenge. Birk goes on to detail:
Birk concludes: "The use of statistical analysis in evaluating a contemplated RIF can be a proactive and valuable preventative step to limit an employer's risk of age-related litigation as a result of the RIF. Evaluating, and then correcting for, any disparate impact on protected older workers prior to the implementation of an RIF is not only a wise decision economically, but also an important human resource management tool."