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There is no question that an employee who endures a hostile work environment because of race or sex discrimination may file a viable claim against his or her employer under Title VII of the Civil Rights Act of 1964 — provided the employer employs a sufficient number of workers. Claims also may be brought to challenge an employer’s policy, neutral on its face, that has a disparate impact on individuals of a particular race or sex. But what about the employee who alleges a hostile work environment or disparate impact based on age? Does the Age Discrimination in Employment Act (ADEA), a statute enacted three years after Title VII and modeled after Title VII, provide similar protections against a hostile work environment or policies having a disparate impact? Despite 35 years of ADEA litigation, there is a split among the U.S. courts of appeals on the viability of disparate impact claims under ADEA, and only the 6th U.S. Circuit Court of Appeals has squarely addressed and answered in the affirmative the question of whether hostile environment claims may be brought under ADEA. See Crawford v. Medina General Hospital, 96 F.3d 830 (6th Cir. 1996); Alexander v. CIT Technology Financing Serv. Inc.,No. 01-CV-7217, 2002 WL 69493, at *2 (N.D. Ill. Jan. 18, 2002) (“the only Court of Appeals to directly resolve this issue [of age-based hostile environment claims] is the [6th] Circuit”). The remainder of the circuits have either not addressed the question at all; assumed, without deciding, that such a claim exists (immediately before dismissing the claim for failure to meet a hypothetical test); or stated that there is such a claim without providing any analysis other than referring generally to the similarities between Title VII and ADEA. The commonly cited rationale for recognition of such claims is the similarity between Title VII and ADEA. This is undermined, however, by the split among the circuits over just how similar the two statutes really are — a split as to whether disparate impact claims are recognizable under ADEA. The U.S. Supreme Court recently declined to resolve the split among the circuits, even after it already had sent the signal that it would resolve the issue by granting certiorari in Adams v. Florida Power Corp., No. 01-584 (2001); see Adams v. Florida Power Corp., 255 F.3d 1322 (11th Cir. 2001). On March 20, the Supreme Court heard oral arguments in Adams. Less than two weeks later, it dismissed the case on the grounds that certiorari had been “improvidently granted,” leaving the confusion in the circuits to continue. Adams, No. 01-584, 2002 WL 480548 (April 1, 2002). CAUSING A STIR There was great interest in Adamsbecause the 11th Circuit’s resolution of the viability of disparate impact claims under ADEA would have provided significant insight into whether the Supreme Court will continue to look to Title VII jurisprudence in interpreting ADEA, or let ADEA stand on its own, an approach suggested by at least two U.S. district courts. See Burns v. AAF-McQuay, 980 F. Supp. 175, 180 (W.D. Va. 1997); Fellows v. Medford Corp., 431 F. Supp. 199 (D. Ore. 1977). The court’s analysis also would have provided guidance on the viability of hostile work environment claims under ADEA. A LONG HISTORY Seventeen years ago, the Supreme Court affirmed what many circuit courts of appeals already had determined — that sexual harassment that creates a hostile or abusive environment in the workplace is a violation of Title VII of the Civil Rights Act of 1964. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). Ten years later, and relying in part on Meritor, the 6th Circuit found it “relatively uncontroversial” that the hostile environment doctrine should apply to ADEA. Crawford v. Medina General Hospital, 96 F.3d 830 (6th Cir. 1996). The 6th Circuit gave three reasons for its conclusion: broad application of the hostile environment doctrine in the Title VII context, the general similarity of purpose shared by Title VII and ADEA and the fact that the Title VII rationale for the doctrine is of equal force in the ADEA context. In short, the 6th Circuit concluded that because ADEA and Title VII are so similar, and because hostile environment claims are recognized under Title VII, then such claims should be recognized under ADEA. To be sure, there are strong similarities between the broad purposes behind ADEA and Title VII. Congress enacted ADEA to promote employment of older persons based on their abilities, rather than age, to prohibit arbitrary age discrimination in employment and to help employers and workers find ways of meeting problems arising from the impact of age on employment. 29 U.S.C. 621(b). Likewise, Title VII is directed at preventing discrimination in the workplace on the basis of race, color, religion, sex or national origin. 42 U.S.C. 2000e-2(m). Indeed, the parallel between the two acts goes beyond the broad purposes of eradicating discrimination. The text of the core anti-discrimination provisions of the two acts are nearly identical. Cf. � 704 of Title VII, 42 U.S.C. 2000e-2(a) (1994) with � 4(a) of the ADEA, 29 U.S.C. 623(a) (1994). This shared purpose and text persuaded the 6th Circuit to recognize explicitly age-based harassment claims under ADEA. Finding that rationale persuasive, in January the U.S. District Court for the Northern District of Illinois also recognized such claims, despite the fact that the 7th Circuit has sent mixed signals on its views of such claims. See Alexander v. CIT Technology Financing Serv. Inc.,2002 WL 69493, at *2 (N.D. Ill. Jan. 18, 2002). Even prior to the 6th Circuit’s explicit pronouncement in Crawford, the 7th Circuit seemed implicitly to find that age-based harassment claims were valid in Young v. Will County Department of Public Aid, 882 F.2d 290 (7th Cir. 1989). In that case, the court evaluated the plaintiff’s claim of harassment under ADEA by looking to the Supreme Court’s decision in Meritor. Without deciding, indeed without asking, whether age-based hostile work environment claims are viable, the 7th Circuit stated that such claims are rare and held that the plaintiff had failed to establish such a claim under the facts there presented. Ten years later, in Halloway v. Milwaukee County, 180 F.3d 820 (7th Cir. 1999), the 7th Circuit stepped away from its implicit acknowledgment of such harassment claims. The court stated that it had never had occasion to decide if such age-based harassment claims may be brought. The 7th Circuit acknowledged that the 6th Circuit had upheld such claims in Crawford, but concluded that there was no need to reach a decision on whether the claim was valid in Hallowaysince the plaintiff had not met the Crawfordstandard. The 7th Circuit still has not issued a definitive pronouncement on the issue. See Bennington v. Caterpillar Inc., 275 F.3d 654 (7th Cir. 2001). A SEA CHANGE? Like the 7th Circuit, the 9th Circuit has not explicitly ruled that a harassment claim may be brought under ADEA. However, in Sischo-Nownejad v. Merced Community College District, 934 F.2d 1104 (9th Cir. 1990), the court, in setting forth generally the law applicable to Title VII and ADEA claims, stated that “[a] plaintiff may show violations of these statutes by proving disparate treatment or disparate impact, or by proving the existence of a hostile work environment.” Id. at 1109. Despite the 9th Circuit’s statement of the law in Sischo-Nownejad, the 11th Circuit recently held that disparate impact claims may not be brought under ADEA. Adams v. Florida Power Corp., 255 F.3d 1322 (11th Cir. 2001). In so holding, the 11th Circuit sided with the 1st, 3rd, 6th, 7th and 10th circuits and against the 2nd, 8th and 9th circuits on this issue. Id. at 1324. The 11th Circuit reasoned that despite the similarities between Title VII and ADEA, and despite the fact that disparate impact claims may be brought under Title VII, the statutes are sufficiently distinguishable to preclude such claims under ADEA. The 11th Circuit based its analysis on the textual difference between Title VII and ADEA and on the different legislative histories of the two acts. The court noted that ADEA explicitly provides that an employer may “take any action otherwise prohibited … where the differentiation is based on reasonable factors other than age.” Id. at 1325 (citing 29 U.S.C. 623(f)(1)). The court found this language similar to language found in the Equal Pay Act, which provides that wage discrimination on the basis of gender is prohibited, unless the wage differential is “based on any other factor other than sex.” Because the Supreme Court has held that disparate impact claims may not be brought under the Equal Pay Act, the 11th Circuit concluded that the similarity in language between ADEA and the Equal Pay Act “raised doubts” about extending the disparate-impact theory of liability to ADEA cases. Id. In a footnote, the court acknowledged that it could be inferred that ADEA’s requirement that the “other factor” be considered reasonable, when there is no such reasonable limitation in the text of the Equal Pay Act, is more akin to the business-necessity defense in disparate impact cases brought under Title VII. In disparate impact cases, it is a defense to a claim if the employer demonstrates that the challenged practice is job-related for the position in question and consistent with business necessity. 42 U.S.C. 2000e-2(k)(1)(A). Presumably, if the court inferred that the reasonableness requirement in ADEA was similar to the business-necessity defense, it would lend support to finding disparate impact claims viable under ADEA. The 11th Circuit refused to draw such an inference primarily because of the legislative history behind ADEA, noting that ADEA was enacted after the secretary of Labor had issued a report on age discrimination. A NEW DIRECTION The 11th Circuit’s decision in Adams, and the other similar circuit court opinions, constitute a break with prior precedent that mechanically applied Title VII jurisprudence to ADEA. In the oral arguments before the Supreme Court in Adamsthere was much that provided hope for either side. Justice Ruth Bader Ginsburg noted that Congress intentionally copied Title VII into ADEA and that it was “unseemly to take identical words” and interpret them differently. Linda Greenhouse, “Supreme Court Hears Arguments on Major Issue in Age Bias Law,” N.Y. Times, March 21, 2002, at A33. Justice Sandra Day O’Connor, on the other hand, observed that when the court devised the disparate impact test for race discrimination cases, it did so against “a long history of societal bias against black people,” but “we don’t have that in age discrimination.” Id. There has been speculation among commentators and in the media that the liberal justices on the court were seeking to dismiss the case without rendering an opinion in order to avoid what was shaping up to be a likely affirmation of the 11th Circuit. “Appeal Rejected in Age Discrimination Case,” CNN.com, April 1, 2002, www.cnn.com/2002/LAW/04/01/ scotus.agediscrimination.ap/index.html. As demonstrated by the Supreme Court’s indecision in Adams, the answer to the question of whether ADEA is “as identical” to Title VII as some circuit courts have held or implied in prior cases is still unresolved, leaving open challenges to disparate impact and hostile environment claims brought under ADEA. David M. Wissert is a member, and John D. Coyle is an associate, at Roseland, N.J.’s Lowenstein Sandler, www.lowenstein.com. Both practice in the firm’s litigation department and employment law practice group.

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