• U.S. Supreme Courts Finds Disparate Impact Claims Available Under ADEA
  • April 2, 2005
  • Law Firm: Ford & Harrison LLP - Atlanta Office
  • The U.S. Supreme Court has just issued an opinion holding that disparate impact claims are available to plaintiffs suing for discrimination under the Age Discrimination in Employment Act (ADEA). See Smith v. City of Jackson, Miss. (Mar. 30, 2005). The Court's decision resolves a split among the Federal Appeals Courts regarding whether such claims are available under the ADEA. Disparate impact claims allege that an employer's practice, which appears neutral on its face, in fact falls more harshly on one group than another (that is, that it disproportionately impacts a protected group). A plaintiff is not required to prove intentional discrimination to prevail on a disparate impact claim. Although the Court has long held that disparate impact claims are available under Title VII, it had not specifically addressed this issue under the ADEA until now.

    In finding that disparate impact claims are available under the ADEA, the Court relied primarily on the language of the ADEA, which is almost identical to that of Title VII, and its prior decisions finding disparate impact claims are available under Title VII. It also relied on the Department of Labor and Equal Employment Opportunity Commission's interpretations that the ADEA permits disparate impact claims. The Court also noted, however, that the scope of a disparate impact claim under the ADEA is narrower than such a claim under Title VII because the ADEA (unlike Title VII) permits actions that are based on reasonable factors other than age (RFOA) and because Congress did not amend the language of the ADEA when it amended Title VII in 1991 to expand the coverage of a Title VII disparate impact claim.

    In Smith, despite finding that disparate impact claims are available under the ADEA, the Court dismissed the plaintiffs' claims based on the specific facts of their case. The plaintiffs, police officers who worked for the city of Jackson, claimed that salary increases received in 1991 violated the ADEA because they were less generous to officers over the age of 40 than to younger officers. The Court applied the analysis used in Title VII disparate impact claims that were decided before the 1991 revisions to that law and held that the plaintiffs' claims in this case failed because they did not identify any specific test, requirement, or practice within the pay plan that had an adverse impact on older workers. The Court noted that the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. Accordingly, because the plaintiffs failed to identify a specific practice that had a disparate impact on workers over age 40, the Court dismissed the claim.

    Bottom Line for Employers

    This decision is not good news for employers with facilities located in jurisdictions that had not permitted ADEA plaintiffs to proceed with disparate impact claims because it expands the scope of ADEA coverage for those jurisdictions. The scope of disparate impact claims under the ADEA is not as broad as those filed under Title VII, however, because ADEA disparate impact plaintiffs must identify a specific employment practice that disproportionately impacted them.