• Supreme Court Determines Age Bias Need Not Be Deliberate
  • April 15, 2005
  • Law Firm: Squire, Sanders & Dempsey L.L.P. - Cleveland Office
  • The US Supreme Court has made it easier for any worker over 40 to allege age discrimination, ruling that employers can be held liable even if they never intended any harm. Smith et al. v. City of Jackson, Mississippi, et al. (March 30, 2005) No. 03-1160.

    The ruling sides with older police officers in Jackson, Mississippi, stating they do not have to prove that the city deliberately tried to discriminate against them because of their age under the Age Discrimination in Employment Act (ADEA), they merely need to show the city's policies disproportionately harmed them. While holding the employees had the right to bring the claim, the high court dismissed the suit, saying officers did not demonstrate the requisite disproportionate harm.

    The ruling means older workers can now bring "disparate impact" claims alleging an otherwise neutral employer policy disproportionately harms employees over the age of 40. Before this ruling, such a legal theory had been allowed only in race, religion, sex and national origin cases.

    The court noted that the policy complained of -- a pay plan that granted a larger percentage raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces -- was a policy based on a reasonable factor other than age that responded to the city's legitimate goal of retaining police officers. The court noted that the plaintiffs had done little more than point out that the pay plan was relatively less generous to older workers than to younger workers. They had not identified any specific tests, requirement or practice within the pay plan that had an adverse impact on older workers. The court stated the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for the disproportionate harm. The plaintiff police officers had failed to meet their burden of proof.

    The ruling allows older workers to make a "disparate impact" claim under the ADEA regardless of intent, but permits an employer to cite "reasonable" factors, such as cost cutting, to justify a practice that penalizes older workers so that it prevails at trial.

    How should employers respond? In the short term, it is likely more age discrimination lawsuits will be filed alleging disparate impact as employers scramble to articulate "reasonable factors other than age" for their otherwise neutral policies that may disproportionately affect older workers. In order to avoid becoming a victim of such a suit, employers of all sizes should review policies and procedures that could, when enforced, negatively affect their older workforce. The policies should be redefined so that their stated purpose is based on reasonable factors other than age, such as cost cutting, advancement of lower echelon employees into management or providing an incentive for performance. Finally, not only should employers have well articulated policies, but the policies should be consistently and uniformly enforced.

    Today there are more than 70 million American workers age 40 or older, and the number is growing. The federal government predicts that by 2010, more than half of all workers will be 40 or older. It is clearly important as the employment population ages that employers review all policies in order to ensure that an otherwise neutral policy does not unintentionally harm their older workforce without a reasonable rationale.