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The 11th U.S. Circuit Court of Appeals has held that, as a matter of law, disparate impact claims cannot be brought under the ADEA. The 11th Circuit found that the statute’s language and legislative history, along with the U.S. Supreme Court’s language in Hazen Paper Co v. Biggins, do not support the use of disparate impact theory for ADEA claims. Adams v Florida Power Corp. (80 EPD 40,581). Although the court noted that the 2nd, 8th and 9th Circuits have held that disparate impact claims are viable under the ADEA, the 11th Circuit, nevertheless, joined the 1st, 3rd, 6th, 7th and 10th Circuits in holding that disparate impact claims are not viable under the ADEA. The 11th Circuit cited three reasons for its decision. First, the text of the ADEA is sufficiently distinguishable from Title VII as to raise doubts about extending the disparate impact theory of liability to ADEA cases. Specifically, the ADEA, unlike Title VII, explicitly provides that an employer may “take any action otherwise prohibited … where the differentiation is based on reasonable factors other than age.” This language is similar to language in the Equal Pay Act, and the Supreme Court has determined disparate impact claims cannot be brought under the Equal Pay Act. Second, the legislative history of the ADEA differed from that of Title VII. The court explained that the ADEA was enacted following a Department of Labor report that recommended that Congress bar disparate treatment, but address disparate impact issues in alternative ways. Third, although the Supreme Court did not squarely decide the issue in Hazen Paper Co., language in that opinion suggests that disparate impact claims cannot be brought under the ADEA. The Court noted that disparate treatment captured “the essence of what Congress sought to prohibit in the ADEA.” Moreover, it stated that, in making employment decisions, the use of factors correlated with age was acceptable so long as those factors did not rely on “inaccurate and stigmatizing stereotypes.”

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