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United States Supreme Court Confirms that Plaintiffs Can Bring Adverse Impact Claims Under the ADEA

Volume 4, Issue 3
March 30, 2005

Today, the U.S. Supreme Court resolved a split of opinion among the federal circuit courts and confirmed that plaintiffs can prove age discrimination in violation of the Age Discrimination in Employment Act (ADEA) by way of an "adverse impact" claim. Under such a theory, plaintiffs can challenge workplace policies or practices that are neutral on their face as to age (or some other legally protected characteristic) by showing that the policy or practice in application has a disproportionate negative effect on older workers (or some other legally protected group). For the purposes of an adverse impact claim, an employer's intent is irrelevant. Rather, it is the policy or practice's impact on a protected group that is important. The Ninth Circuit Court has long recognized the viability of adverse impact claims under the ADEA, but other federal courts declined to allow such claims.

One positive note for employers is the Supreme Court's clarification that adverse impact claims under the ADEA are significantly narrower than adverse impact claims under Title VII of the Civil Rights Act of 1964. One reason offered by the Court is the language of the ADEA itself, which permits employers to take "otherwise prohibited" action where the differentiation is based on "reasonable other factors other than age." The other reason offered by the Court is the fact that subsequent amendments to Title VII under the Civil Rights Act of 1991, which modified the Court's prior narrow interpretation of liability under adverse impact theories, did not amend the ADEA.

This case is a mixed bag for employers. A more employer-friendly result would have been a finding that adverse impact claims do not exist under the ADEA as asserted by Justices O'Connor, Kennedy and Thomas in a dissenting opinion. However, for Nevada employers, who already have had to contend with such claims under the ADEA, the Court's decision allows for a more narrow application of the adverse impact theory given the defense that reasonable factors other than age may account for disparate impact on older workers.

Smith v. City of Jackson , --- U.S. ---, 2005 WL 711605 (Mar. 30, 2005).
http://supct.law.cornell.edu/supct/html/03-1160.ZS.html

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