Labor E-Bulletin - Supreme Court Opens the Door to Disparate Impact Age Discrimination Claims
March 31, 2005
Can an employer be liable for age discrimination when it never intended to discriminate? In Smith v. City of Jackson, a majority on the United States Supreme Court held yesterday that employers may be liable for “disparate impact” age discrimination under the ADEA.
Previously, the Supreme Court recognized disparate impact claims under Title VII, typically for race and sex discrimination, where facially-neutral policies disparately impact a protected group. For instance, statistics might show that an employer’s policy of only hiring employees who are at least 5’2’’ tall has a disparate impact on women. Faced with such statistics, an employer must show that the challenged policy is “job-related” and a “business necessity.”
After yesterday’s decision, an employer’s liability under the ADEA remains narrower than under Title VII. When faced with statistics suggesting that one of its policies has a disparate impact on employees age 40 and over, the employer must show that the challenged policy is “reasonable”; the employer does not have to make the more burdensome showing of “job-relatedness” and “business necessity” required in race and sex discrimination cases. The age discrimination plaintiff must point to a specific factor causing the disparate impact; unlike certain race or sex discrimination plaintiffs, the age discrimination plaintiff may not focus her statistics on her employer’s overall decision-making process.
Applying its new standard in Smith, the Supreme Court held that the City of Jackson’s policies governing police officers’ raises did not have a disparate impact on older police officers, even though junior officers, who tended to be younger, received proportionally greater raises than higher-ranking officers. The Court noted that the plaintiffs’ statistics failed to identify any specific test or requirement disparately impacting the older officers and further held that the City of Jackson’s reliance on seniority and rank to achieve its goal of raising officers’ salaries to match those in surrounding communities was “reasonable.”
Given the outcome in Smith, it remains to be seen what facts would support a disparate impact age discrimination claim. Employers should be aware that their facially-neutral policies may be used to support claims of age discrimination where statistics show that the policies disparately impact older employees.
Please let us know if we may answer any questions regarding this recent development in age discrimination law.
Previously, the Supreme Court recognized disparate impact claims under Title VII, typically for race and sex discrimination, where facially-neutral policies disparately impact a protected group. For instance, statistics might show that an employer’s policy of only hiring employees who are at least 5’2’’ tall has a disparate impact on women. Faced with such statistics, an employer must show that the challenged policy is “job-related” and a “business necessity.”
After yesterday’s decision, an employer’s liability under the ADEA remains narrower than under Title VII. When faced with statistics suggesting that one of its policies has a disparate impact on employees age 40 and over, the employer must show that the challenged policy is “reasonable”; the employer does not have to make the more burdensome showing of “job-relatedness” and “business necessity” required in race and sex discrimination cases. The age discrimination plaintiff must point to a specific factor causing the disparate impact; unlike certain race or sex discrimination plaintiffs, the age discrimination plaintiff may not focus her statistics on her employer’s overall decision-making process.
Applying its new standard in Smith, the Supreme Court held that the City of Jackson’s policies governing police officers’ raises did not have a disparate impact on older police officers, even though junior officers, who tended to be younger, received proportionally greater raises than higher-ranking officers. The Court noted that the plaintiffs’ statistics failed to identify any specific test or requirement disparately impacting the older officers and further held that the City of Jackson’s reliance on seniority and rank to achieve its goal of raising officers’ salaries to match those in surrounding communities was “reasonable.”
Given the outcome in Smith, it remains to be seen what facts would support a disparate impact age discrimination claim. Employers should be aware that their facially-neutral policies may be used to support claims of age discrimination where statistics show that the policies disparately impact older employees.
Please let us know if we may answer any questions regarding this recent development in age discrimination law.
