A Necessary Tool: The Continuing Debate over the Viability of Disparate Impact Claims under the Age Discrimination in Employment Act

Article excerpt

INTRODUCTION

Discrimination against older employees in the American workplace has long been a common phenomenon.1 Until the 1950s, when many states began to pass laws addressing such discrimination, older workers in America enjoyed relatively few protections from employment discrimination.2 The American population is increasingly getting older. The baby boomer generation workers make up almost half of the entire workforce, and the youngest of them will turn forty in 2006.3 Therefore, in a few short years this entire group will fall within a protected class,4 It is clear that, now more than ever, our court systems and workplaces are on the threshold of a crisis that cannot be avoided unless the current trend of age discrimination is abated.5

Three key pieces of federal legislation offer workers crucial protections against many forms of employment discrimination: Title VII of the Civil Rights Act of 1964 (Title VII),6 the Americans With Disabilities Act of 1990 (ADA),7 and the Age Discrimination in Employment Act (ADEA).8 Typically, an employee can use one of two theories to allege employment discrimination. First, the employee can claim injury under a disparate treatment theory, meaning that the employer has clearly treated the employee differently based on a protected characteristic.9 Alternatively, an employee can proceed under a disparate impact theory. To succeed under this theory, the employee must show that an employment practice, though neutral on its face, has the effect of discrimination.10 The "chief difference" between these two theories is that under the disparate treatment theory an employee must show that an employer acted with a discriminatory motive, while under disparate impact theory no such showing is required.11 To allege violations of Title VII or the ADA, employees may bring claims using either theory.12 Under the ADEA, while courts unanimously recognize an employee's ability to claim disparate treatment,13 they are split over whether they will allow disparate impact claims. The Courts of Appeals for the Second, Eighth, and Ninth Circuits have allowed such disparate impact claims, while the First, Third, Sixth, Seventh, and Tenth Circuits have not.14

The longstanding debate among scholars and the split in the circuits on the availability of disparate impact claims under the ADEA continues today.15 Part I of this Note reviews the background of the ADEA and discusses the split among the circuits on this issue. Part II argues that because Title VII and the ADEA are similar both in statutory language and purpose, courts should allow plaintiffs to use a disparate impact theory to allege discrimination in violation of the ADEA, as they can under Title VII. Part III contends that the Supreme Court has left this issue undecided in Hazen Paper Co. v. Biggins16 and argues further that disparate impact theory is necessary for employees who wish to attempt to prove that employment practices based on valid factors are actually pretextual and motivated by animus. Finally, Part IV shows that allowing employees to bring disparate impact claims under the ADEA is in the best interests of the public and fulfills the true purposes of the Act.

I. THE FOUNDATIONS OF THE DEBATE

A. The Purpose and Legislative History of the ADEA

Congress enacted the ADEA in 1967 as a response to the prevalence of age discrimination throughout the American workplace.17 The statute's goal was to end arbitrary discrimination against workers because of their age.18 Congress intended to "promote the employment of older workers based on their ability" rather than their age19 and therefore prohibited an employer from failing or refusing to "hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."20

Title VII of the Civil Rights Act of 1964(21) originally contained a provision concerning age discrimination, but it was deleted before the Act's passage. …