Age Discrimination

AGE DISCRIMINATION: DISPARATE IMPACT

In 1967 Congress passed the Age Discrimination in Employment Act (ADEA), which protects workers age 40 or older from employment discrimination based on their age. Anyone who employs 20 or more people is subject to ADEA; it covers hiring, firing, compensation and benefits, training, job assignments, promotions, and layoffs.

Since ADEA's passage, however, there has been a difference of opinion among legal experts about exactly what types of action constitute "discrimination."

There are two different approaches that a plaintiff may take when filing an age discrimination suit, "disparate treatment" and "disparate impact." In disparate treatment cases, the plaintiff must prove that there was a SPECIFIC INTENT to discriminate based on age. An example would be an employee whose supervisor keeps saying in front of other staffers, "Are you sure you're still able to do this work?" or "Don't you think it's time you retired?" DISPARATE IMPACT cases require the plaintiff to prove that an employment decision disproportionately affects members of a protected group (in this case, those over 40). In other words, in a disparate impact case, the discriminatory effect is what matters, even if the employer's intent was not discriminatory. Courts that recognize the disparate impact argument in age discrimination cases often require companies to prove "business necessity." For example, if a disproportionate number of employees affected by a layoff are over 40, the company will have to prove that those people were let go because their salaries were disproportionately high and that the company would face financial hardship if they were allowed to stay on.

In other forms of employment discrimination, the disparate impact argument has been used successfully. For example, employers who require prospective employees to have a certain educational background can be liable for a disparate impact charge if it turns out that those educational requirements rule out certain racial groups. The case of Griggs v. Duke Power, 401 U. S. 424, 88P.U.R. 3d 90, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) was the first RACIAL DISCRIMINATION case to recognize disparate impact. In age discrimination cases, the issue is more vague. It is so vague, in fact, that the U.S. federal circuit courts do not agree about whether disparate impact claims are allowable. The First, Sixth, Seventh, Tenth, and Eleventh Circuits do not allow disparate impact claims; the Second, Eighth, and Ninth do. The Third and Fifth Circuits had not ruled on it as of 2003, and the Fourth Circuit had not addressed it at all. In December 2001 the U.S. Supreme Court heard the case of Adams v. Florida Power Corp, 535 U.S. 228, 122 S. Ct. 1290, 152 L. Ed. 2d 345 (2002), in which the Eleventh Circuit Court had ruled against the plaintiffs' disparate impact argument in 255 F. 3rd 1322 (11th Cir. 2001), citing that it was "unavailable" for age discrimination cases. The plaintiffs took the case to the Supreme Court. The Eleventh Circuit Court argued that age discrimination is closer in scope to the Equal Pay Act (for which the Supreme Court has not allowed disparate impact claims) than Title VII of the CIVIL RIGHTS ACT(which covered Griggs and similar cases). In April 2002 the Supreme Court dismissed the case without discussing its merits, stating only that the writ of certiorari had been "improvidently granted." This outcome left the issue unresolved judicially.

Proponents of disparate impact claims for age discrimination cases argue that employers should not be allowed to make employment decisions that disproportionately affect those over 40. In support of their position they point to employers who try to get around the claims so that they can demote or lay off their older workers. Often, those older workers are among the most highly paid and have the most expensive benefits in the company. From the company's point of view, getting rid of such an expensive workforce in favor of a younger and cheaper staff can generate significant savings, which is the reason the company will give for laying off a disproportionate number of older workers during a round of cost-cutting measures. This, say proponents of disparate impact claims, is clearly age discrimination because it singles out people over a certain age. The fact that a company uses cost savings or some other reason for taking the action does not diminish the adverse impact that action has on older workers.

Opponents of age-based disparate impact claims use the same example to make their case. The employer may indeed have laid off older workers to save money. But saving money is not the same as practicing age discrimination. From a business perspective, the employer has a legitimate financial concern for the future of the company. The fact that a particular action affects one group more than another is not adequate ground for protection in such cases, say those who oppose the disparate impact claim. If a company's only viable options are laying off high-salary employees or closing, it does not have the luxury of protecting workers who are over 40.

It should be noted that opponents of the disparate argument are not necessarily opposed to protection against age discrimination. The U.S. CHAMBER OF COMMERCE, which has filed amicus briefs in such cases on numerous occasions, has stated its position clearly: "Reliance on age stereotypes about the abilities of older workers should not be tolerated. Due to natural job progression, however, age affects job terms such as compensation, PENSION, and seniority. In this context … imposing a burden on employers to justify the business necessity of routine and uniform job standards that statistically impact older workers is unjustified." Few would argue that employers should be forced to tolerate poor workers simply because they are past a certain age. The question is whether disparate impact actually forces them to do so.

Both sides of the debate may need to keep in mind that each case is unique. There is no doubt that some companies have legitimate financial difficulties and may be forced to lay off a disproportionate number of older workers. A company that does so and then makes do with fewer staffers is not the same as a company that turns around and hires younger people at salaries comparable to what the older workers were making. Likewise, an employee who is demoted because his or her work has measurably deteriorated in quality is different from an employee who is demoted for some vague reason upon reaching age 40 or 50.