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With the mass of layoffs being announced in reaction to the nation’s weakened economy, there is renewed interest in the “disparate impact” theory of liability under the Age Discrimination in Employment Act (ADEA). Among the doctrines of employment discrimination law, the “disparate impact” theory of liability is regarded by many as the most sweeping because it provides a basis for challenging as discriminatory any employment practice, including those which are facially neutral, based solely on the practice’s effect on a protected group, without reference to the employer’s intent. Generally speaking, any facially neutral, objective policy may be found unlawful if, in operation, its effect falls significantly more harshly on a protected group than on others and if the policy cannot be justified by the employer as a business necessity. The disparate impact theory originated in the U.S. Supreme Court’s 1971 decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), in the context of Title VII of the Civil Rights Act of 1964. In Griggs, a North Carolina power plant that had, before the enactment of Title VII, historically excluded blacks from all but the most menial jobs, promulgated new employment policies on July 2, 1965, the day Title VII became effective. These new policies restricted the same higher-paying jobs to applicants and transferees possessing a high school diploma and passing standardized “general intelligence” and “aptitude” tests. The effect of these policies was to erect new facially neutral barriers to employment opportunities for blacks at the power plant, resulting from the low percentage of high school-educated blacks in the community and from blacks’ substantially higher standardized-test failure rate. In 1991, Congress amended the Civil Rights Act to reference disparate impact liability. The act makes unlawful any employment practice that “causes a disparate impact on the basis of race, color, religion, sex, or national origin” unless the employer can demonstrate “that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. 2000e-2(k). AGE DISCRIMINATION IS NOT CITED IN 1991 AMENDMENT The 1991 amendment does not mention age discrimination. Some courts have interpreted the 1991 amendment’s silence as to the ADEA to be purposeful. See Martincic v. Urban Redevelopment Auth. of Pittsburgh, 844 F. Supp. 1073, 1078 (W.D. Pa. 1994). Consequently, an issue that continues to stir debate, just as it did before 1991, is whether the ADEA recognizes disparate impact claims. Among the circuits, there remains disagreement. The 2nd, 6th, 8th, 9th and D.C. Circuits have held that disparate impact theory is available under the ADEA, while the 1st, 3rd, 4th, 5th, 7th, 10th and 11th Circuits have either held that the disparate impact theory is not available or called into question its application to ADEA actions. Although the Supreme Court has yet to resolve this issue, many courts have interpreted its majority and concurring opinions in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), to foreclose ADEA liability on the basis of disparate impact theory. In Hazen, the court addressed the issue of whether interference with the vesting of an employee’s pension violated the ADEA. The court held that the employer’s dismissal of the plaintiff in order to prevent the vesting of his pension benefits did not constitute disparate treatment age discrimination in violation of the ADEA, when the benefits were based on years of service, rather than on age. Writing for the majority, Justice Sandra Day O’Connor stated that “we have never decided whether a disparate impact theory of liability is available under the ADEA … and we need not do so here.” Id. at 610. In a concurring opinion, Justice Anthony Kennedy, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, cautioned that the majority opinion should not be construed “as incorporating in the ADEA context the so-called ‘disparate impact’ theory of Title VII of the Civil Rights Act of 1964.” Following the Hazen decision, and obviously with an eye firmly planted on the concurrence, seven circuits have interpreted the decision to mean that the disparate impact theory is unavailable to ADEA plaintiffs. In the most recent of these, this summer, the 11th Circuit rejected an ADEA claim premised on disparate impact analysis. The case is instructive because it suggests the position that the Supreme Court is likely to take when it inevitably addresses this issue. In Adams v. Florida Power Corp., 255 F.3d 1322 (11th Cir. 2001), the 11th Circuit affirmed the district court’s conclusion that, as a matter of law, disparate impact claims cannot be brought under the ADEA. The plaintiff and several others were terminated by the defendant between 1992 and 1996 during a series of reorganizations the company claimed were necessary after Congress opened the electric utility industry to competition through the Energy Policy Act of 1992. Members of the class sued, alleging the defendant discriminated against them because of their age, in violation of the ADEA. The court began its discussion by noting the circuit split. Those circuits that question the application of disparate impact theory to the ADEA recognize that the text of the ADEA differs from Title VII in an important respect. The ADEA explicitly provides that an employer may “take any action otherwise prohibited … where the differentiation is based on reasonable factors other than age.” 29 U.S.C. 623(f)(1). Indeed, the 1st Circuit, in Mullin v. Raytheon Co., 164 F.3d 696, 702 (1st Cir. 1999), had reasoned that “if the exception contained in section 623(f)(1) is not understood to preclude disparate impact liability, it becomes nothing more than a bromide to the effect that ‘only age discrimination is age discrimination.’ Such a circular construction would fly in the teeth of the well-settled canon [of statutory construction].” The Adams court also noted the similarity between the language of � 623(f)(1) and that found in the Equal Pay Act. Sec. 206(d)(1) of the latter act provides that wage discrimination on the basis of gender is prohibited, unless the wage “differential [is] based on any other factor other than sex.” 29 U.S.C. 206(d)(1)(iv). In County of Washington, Ore. v. Gunther, 452 U.S. 161 (1981) — relied on by the 11th Circuit — the Supreme Court interpreted � 206(d)(1) to preclude disparate impact claims. With this distinction well in mind, the Adams court concluded that 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.” Adams, 255 F.3d at 1325. The court also found that “the history of the ADEA differs from the legislative history of Title VII, which the Supreme Court in Griggs relied on to find a cause of action for disparate impact.” Id. The Adams court further observed that, while Hazen left open the viability of a disparate impact claim under the ADEA, its language suggests that such a claim cannot be viable, in the sense that the Supreme Court had ruled that the use of factors correlated with age did not rely on inaccurate and stigmatizing stereotypes, and was acceptable. In fact, this summer has not been hospitable to other aspects of disparate impact theory. On the same day that Adams was decided, the district court in Robertson v. Sikorsky Aircraft Corp., No. 397CV1216, 2000 WL 33381019 (D. Conn. July 5, 2001), suggested that, even under Title VII, it may be difficult to maintain a disparate impact claim. In Robertson, the court addressed the question of whether to grant the plaintiffs’ motion for class certification of a race discrimination claim under Title VII. The plaintiffs submitted an expert’s statistical report that concluded that blacks were not being promoted at the same rate that whites were. The court stated, “The assumption is that any time one racial group does not fare as well as another in any sort of situation, the explanation must be discrimination. There is no scientific basis for that.” Id. at *2. Further, the court stated: “Plaintiffs’ statistical evidence … is not directed at any actual employment policy or practice. Instead, what we have here are evaluations and decisions made by hundreds of supervisors and managers on a variety of things besides promotions.” Id. at *5 (citing Jay W. Waks & Gregory R. Fidlon, “Use and Misuse of Statistics,” NLJ, April 9, 2001, at B8). Although the question of disparate impact analysis under the ADEA may perplex certain courts, it seems inevitable that the Supreme Court will conclude that such claims may not be maintained. In the final analysis, the underlying assumptions upon which the Title VII disparate impact doctrine is premised are absent in the ADEA context because age discrimination, unlike its racial counterpart at issue in Robertson, is not so much a matter of intractable animus as it is a matter of generalized judgments regarding ability, which are adequately addressed by traditional intent-focused doctrine. Moreover, unlike race, sex or national origin, age is not an immutable characteristic defining a discrete, insular minority class. Older workers, unlike Title VII’s protected groups, do not presumptively suffer from a history of societal deprivation outside the employment context that calls for the same level of extraordinary employment remedy. Moreover, unlike Title VII groups, older workers benefit from important compensating practices like seniority and tenure systems that act to preserve their job security. Jay W. Waks, a litigation partner at New York’s Kaye Scholer, is chairman of its employment and labor law practice, representing corporate clients in equal employment opportunity and employment rights litigation in New York and other jurisdictions. Jessica L. Zellner is a litigation associate in the firm’s employment practice.

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