Accidental Age Discrimination?:
The Supreme Court Considers the Viability of "Disparate Impact" Claims

But what about "disparate impact" age discrimination - which occurs when a particular policy happens to more heavily hurt older workers? "Disparate impact" theory applies to neutral employment practices that have a disproportionate, adverse impact on a particular protected group. Examples might include a fitness requirement that younger workers could easily meet, but older workers would have trouble with.

Is such a practice also covered by the statute? That is what the court must now decide. The issue is purely a question of statutory interpretation - not constitutional law. Did Congress intend, when it passed the ADEA, to prohibit unintentional discrimination? The implications of the Court's ruling, either way, will be wide-ranging.

The defendant's lawyer was put in a tough position during oral argument. The attorney had to advocate for employers' greater ability to discriminate against the elderly before a bench of nine Justices, eight of whom fall between the ages of 65 and 84. (Clarence Thomas is the exception.)

With life tenure, Supreme Court Justices are not as vulnerable as other older workers, but they might be able to find empathy for them nonetheless. And as I will explain, they should: The ADEA should be interpreted to cover "disparate impact" age discrimination claims - for recognizing those claims would fit with the statute's language, and would also further its goals.

The ADEA: Its Origin, Coverage, and Language

In 1964, Congress enacted the Title VII of the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, color, national origin, sex, and religion in employment Congress. Then, three years later, in 1967, Congress enacted the ADEA -- the first federal age discrimination statute.

The ADEA was patterned directly on Title VII. Accordingly, courts often draw on Title VII decisions, in interpreting the ADEA. (The technical term for the principle of statutory interpretation allowing similar statutes to be construed alike is "in pari materia.")

By its terms, the ADEA makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate . . . because of such individual's age." (Emphasis added.) Title VII also uses the phrase "because of," referring to its own prohibited characteristics. Accordingly, cases regarding what kinds of discrimination can be the basis for a Title VII lawsuit - that is, what kinds count as discrimination "because of" prohibited characteristics - arguably may be helpful in deciding what kinds of discrimination can be the basis for an ADEA lawsuit, as well.

The ADEA is different from Title VII in one way, however: It has a minimum age. Originally, only workers between 40 and 65 years old were covered by the ADEA. Then the upper limit was raised to 70. And eventually, the limit was removed altogether, subject to a few exceptions.

The age minimum led to an unusual case decided by the Court last term. In General Dynamics Land Systems, Inc. v. Cline, a number of 40-and-over plaintiffs complained about a policy that intentionally favored workers who were even older than they were. They claimed they had a right to sue because they were 40 or over, as the ADEA requires, and because they had suffered intentional age discrimination on the basis of their being younger than their fellow workers.

The Court, however, rejected their claim. It made clear that under the ADEA, "reverse" age discrimination against the young is not covered - even if the young are at least 40.

Title VII and Disparate Impact Discrimination: The Court and Congress Weigh In

The Supreme Court has long held that Title VII covers "disparate impact" discrimination - a holding that may convince the Justices to reach the same holding in the ADEA "disparate impact" case currently before the Court.

Disparate impact theory, generally, is an important complement to more conventional theories of discrimination. It serves two important purposes.

First, it serves as a check against truly accidental discrimination. A police force that maintains higher than necessary fitness requirements for its officers--ones that women might be less likely to meet--may not have been adopted to produce that effect. And yet they operate to deprive women of access to desirable jobs for no real reason. Disparate impact theory provides a means for forcing employers--either in response to litigation, or to avoid it--to reevaluate their practices to ensure equal opportunity where possible.

Second, it polices intentional discrimination at the margins. Consider a case in which prior to the passage of Title VII, an employer openly refused to hire African-Americans for certain jobs. Then, on July 2, 1965--the very day Title VII was to take effect banning that practice--the employer "happened" to adopt a high school graduation requirement and to require minimum aptitude test scores for certain classes of employees. The not-so-coincidental effect of these requirements was to ensure that African-Americans - despite Title VII - would still be barred from desirable jobs in that workplace.

Fortunately, in 1971, in Griggs v. Duke Power Co., the Court struck down that very requirement. It declared the Title VII "disparate impact" theory valid, which meant that the employer could not insist on these requirements unless they were justified by "business necessity."

However, in a series of decisions issued after Griggs, the Supreme Court narrowed the scope of disparate impact liability, and imposed a variety of obstacles to plaintiffs pursuing them. It did so based on its interpretation of the statute.

Spurred mostly by the Court's narrowing of the cause of action, Congress amended Title VII in 1991. As amended, Title VII expressly provides a cause of action for unintentional discrimination. In addition, Congress made plain its intent to restore the Court's initial, broader conception of what counts as such discrimination.

The Supreme Court's ADEA Precedents: The Question the Court Reserved

This background brings us back, then, to the key question the Court will decide: Can unintentional - or "disparate impact" - discrimination be the basis for an ADEA lawsuit?

At issue in Smith, the case before the Court, is a policy of the City of Jackson Police Department. The Department adopted performance pay incentives designed to provide proportionately greater raises to newer officers - specifically, those who had served for five or fewer years. Naturally, the inexperienced also tended to be the young. And that meant that 40-and-over (and hence ADEA-covered) workers were disproportionately likely to be ineligible for the greater pay raises. This disparate impact on workers due to their greater age, the plaintiffs claimed, amounts to discrimination on the basis of age prohibited by the ADEA.

On the side of the plaintiffs, as noted above, is the fact that the Court has held that Title VII - which is very similar to the ADEA - does prohibit disparate impact discrimination. Moreover, the EEOC -- the agency charged with interpreting federal anti-employment-discrimination statutes - has assumed, in its Guidelines, that like Title VII claims, ADEA claims can also rest on a "disparate impact" theory.

Cited on the side of the Department, however, are a few differences between the ADEA and Title VII - some of which are more significant than others.

To begin, it seems irrelevant that unlike with Title VII, Congress did not amend the ADEA to expressly create a disparate impact theory of discrimination. After all, the Court, had held even before the amendment, that Title VII implicitly embraced such a theory. And that suggests that, if it had been asked at the time, the Court would also have held that the ADEA's similar language implicitly embraced the same theory.

But it may be relevant - and, indeed, some lower federal courts have found it very significant - that the ADEA, unlike Title VII, permits employers to take adverse employment actions "based on reasonable factors other than age."

Some courts have interpreted this language to mean that when Congress, in the ADEA, made decisions "because of" age illegal, it really meant only to make decisions "based on age" illegal. And decisions "based on age," these courts have reasoned, are only intentionally discriminatory decisions - not decisions with disparate impact.

More support for this view comes from County of Washington v. Gunther, a Supreme Court decision interpreting the Equal Pay Act not to cover disparate impact discrimination. Like the ADEA, the Equal Pay Act includes an exception for decisions based on "any factor other than" its prohibited characteristic: sex.

Why Age Discrimination Might Be Thought to Be Unique

Both the workers' and the Department's interpretations of the ADEA seem plausible. The workers draw a strong parallel to Title VII; the Department draws a strong parallel to the Equal Pay Act.

Which interpretation should the court opt for? I believe the answer ought to be found by looking to the policies - and realities -- behind the ADEA.

Age discrimination is unique in three primary respects. First, everyone who lives long enough will become a part of the protected class (a fact captured in the title of historian Lawrence Friedman's book Your Time Will Come: The Law of Age Discrimination and Mandatory Retirement). This suggests that nondiscriminatory policies ought to have general appeal, both for the older persons they protect, and the younger persons they will someday protect.

Second, age discrimination often arises from misperceptions of, not just from animosity toward the old. Paternalistic employers may genuinely believe older workers cannot - or will not want to - handle certain job responsibilities.

Third, older workers have often been privileged - not hurt - by age-based systems. Consider seniority systems, for example.

The Case for Treating Age Discrimination Like Race and Sex Discrimination

These uniquenesses of age discrimination, though real, may be irrelevant. First, the fact that everyone will grow old might suggest age-discriminatory policies wouldn't exit. But in fact, they do.

Age discrimination is a pervasive part of American workers' lives. In fact, since the end of the nineteenth century, bias and discrimination against older workers have been pervasive in the United States. (Historian Kerry Segrave gives an excellent account of this history in his 2001 book, Age Discrimination in Employment.) In many sectors, long-honed skills took on decreasing importance. At the same time, widespread beliefs about the mental and physical infirmities associated with advancing age created stereotypes that were reflected in business practices.

Second, the fact that these beliefs are well-meaning - and based on misperception, not animosity - does not decrease their harmful character. Individuals - as the ADEA recognizes - ought to have the right to be judged based on individual capability, not stereotypes about the group to which they belong.

Finally, while older employees have at times benefited from seniority systems, that does not justify our looking the other way when age discrimination occurs. Would we look the other way when an African-American suffers a racist employment decision, simply because others of his race may have benefited from affirmative action in employment?

Except for these irrelevant differences, age discrimination in employment is much like race or sex or national origin discrimination in employment: It harms employees based on a characteristic having nothing to do with their work, based on damaging stereotypes about those who have that characteristic.

In addition, "disparate impact" theory's purposes are served not only when it comes to race and sex and national origin discrimination, but also when it comes to sex discrimination. As noted above, the theory serves as a check on accidental discrimination - the kind of stereotype that assumes an older (or African-American, or female) worker is capable of less. And stereotypes about the waning capacities of workers as they age are prevalent.

In addition, as noted above, the theory serves to police intentional discrimination at the margins. And such discrimination doubtless occurs: Consider the familiar call for "new blood" in hiring discussions. Employers may well prefer to hire younger, cheaper, fresher labor where possible.

That tendency, however natural, is age discrimination - and sometime it may be implemented in policies that, while not discriminatory on their face, nevertheless have a predictably discriminatory impact.