April 1, 2005
United States Supreme Court Decides ADEA Disparate Impact Case
On March 30, 2005, the United States Supreme Court clarified two key provisions of the Age Discrimination in Employment Act (“ADEA”) in Smith v. City of Jackson, Mississippi, 2005 WL 711605. First, the Court rejected a series of recent Courts of Appeals decisions holding that employees may not assert a disparate impact theory of discrimination in an age discrimination case. Second, the Court held that employers may assert a “Reasonable Factor Other Than Age” (“RFOA”) defense to disparate impact claims, and that the RFOA defense to an ADEA disparate impact claim imposes a lesser burden on employers than a business necessity defense to a disparate impact claim under Title VII of the Civil Rights Act of 1964 (“Title VII”).
The Supreme Court first recognized a disparate impact theory under Title VII in 1971, when it held that high school diploma eligibility requirements that disqualified proportionately greater numbers of potential black applicants than white applicants for employment violated Title VII, unless an employer could prove that there was a business necessity for the eligibility requirement, even though there was no evidence that the employer had adopted the requirement for the purpose of discriminating against black applicants. In 1989, in Wards Cove Packing Co. v. Antonio, 490 U.S. 642
the Supreme Court theory under Title
imposed rigorous burdens
amending Title VII to specify the burdens of proof for
of proof on plaintiffs’ asserting a disparate responded to the Wards Cove decision by plaintiffs and employers in disparate impact to ADEA. After a 1993 Supreme Court
decision analyzing an intentional discrimination (“disparate treatment”) claim under number of Courts of Appeals (the First, Seventh, Tenth and Eleventh Circuits) held that impact theory was not available in federal age discrimination cases, while three Courts
ADEA, a a disparate of Appeals
(the Second, cases.
In Smith v. City of Jackson, Mississippi, the Supreme Court definitively resolved the split between the circuits by upholding the validity of disparate impact ADEA claims. At the same time, the Court made two rulings that are favorable to employers’ defending such claims. First, the Court held that the more rigorous Wards Cove standards for proving disparate impact, rather than the standards applicable to Title VII disparate impact claims, apply in ADEA cases. The Court found that the plaintiffs had failed to comply with their obligation under Wards Cove to identify and isolate
the specific disparities.’”
employment practices (Under Title VII, if
“‘that are plaintiffs
allegedly responsible demonstrate that the
for any observed statistical elements of an employer’s
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