Disparate impact
As
explained in Introduction to Federal
Employment Discrimination Law,
disparate impact cases do not require proof of an
intent to discriminate. They simply require proof
that a seemingly neutral job requirement has a disparate
impact on older employees. For example, let's assume a
job requires physical strength and the employer will only hire someone who can lift 100
lbs. Let's further assume that older workers, on average, are less likely to be able
to lift 100 lbs. Even though the employer was not intending to exclude older
workers, this job criteria results in fewer older workers being hired. In other
words, the job requirement has a "disparate impact on older workers. If the employer can show that
the test given is a fair representation of the strength level required for the job, then
the court will not find age discrimination even if the test results in the exclusion of
older workers. But that will not be the case if the actual job duties would only
require the ability to lift 75 lbs. (for example).
One
question that has existed until recently is whether the
ADEA prohibits disparate impact discrimination.
Stated another way, some courts have interpreted the
ADEA as only prohibiting intentional discrimination.
Since disparate impact claims do not require proof of
intentional discrimination, then those courts concluded
that no such claims exist under the ADEA. But the
U.S. Supreme Court settled this issue in Smith v.
City of Jackson, Miss., 125 S.Ct. 1536 (2005).
In that case, the Supreme Court held that the ADEA
authorizes disparate impact claims, but all the employer
must show is that the business practice is reasonable.
The employer does not have to meet the higher standard
normally required in disparate impact cases of showing
that the buisness practice is a buisness necessity.
There are complicated legal reasons for this difference
that are beyond the scope of this introductory article.
With
respect to what is the difference between a
reasonableness standard and a business necessity
standard, if the employer's business practice is
reasonable, then there is no ADEA violation. But
if the business necessity standard had applied, then
even if the employer put forth evidence that the
business practice was reasonable, the plaintiff could
still prevail by showing there was some other reasonable
practice that would accomplish the same goal and not
have a disparate impact on older workers. In
short, it will be more difficult for a plaintiff to
prevail in an ADEA disparate impact action than in a
disparate impact alleging (for example) race
discrimination under Title VII.