The Age Discrimination in Employment Act (ADEA) prohibits employment practices that have an unjustified disparate impact on older workers, Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), but also provides that it "shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age." 29 U.S.C. § 623(f)(1). The questions presented are:

1. Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the "reasonable factors other than age" defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission.

2. Whether respondents practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a "reasonable factor other than age" as a matter of law.

3. Does the text of section 4(a)(2) of the Age Discrimination in Employment Act (ADEA) protect outside job applicants, as this Court held when interpreting language identical to section 4(a)(2) in Griggs v. Duke Power Company, 401 U.S. 424 (1971), or does section 4(a)2) unambiguously apply only to incumbent employees applying for transfers and promotions, as the majority of a divided en banc Seventh Circuit held below?

4. Are disparate-impact claims cognizable under the Age Discrimination in Employment Act (ADEA)?

5. If disparate-impact claims are cognizable under the Age Discrimination in Employment Act (ADEA), what are the standards and burdens of proof that should apply?

Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the 'reasonable factors other than age' defense