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Improvidently Granted: The Supreme Court Hesitates

Donald L. Zink
Personnel Management Decisions

After a term that is likely to be remembered (at least by I-O psychologists) for its decisions further limiting the applicability of the Americans With Disabilities Act, the Supreme Court probably also will be remembered for two decisions it did not make. After having granted certiorari to Adams v. Florida Power Corp., (2001) and to Adarand Constructors v. Mineta, (reviewing Adarand Constructors v. Slater, 2000) the Court later took the unusual step of dismissing both cases, stating in both instances that certiorari had been improvidently granted. Even more unusual, both cases were dismissed after the Court had heard oral arguments. The following discussion reviews Adams v. Florida Power Corp. Adarand Constructors v. Mineta may be reviewed in an upcoming issue of TIP.

In Adams v. Florida Power, the question presented was whether a disparate impact theory of liability is available to plaintiffs suing for age discrimination under the Age Discrimination in Employment Act of 1967. (Certiorari was granted 3 December 2001; oral argument was heard 20 March 2002; and the case dismissed on 1 April 2002. No reason was given for the decision to dismiss.)

The Age Discrimination in Employment Act (ADEA) prohibits discrimination against employees beginning at age 40. Florida Power Corporation (FPC), a utility that had been recently deregulated, terminated Wanda Adams and 116 other employees during a series of reorganizations that occurred between 1992 and 1996. FPC claimed that the reorganizations were necessary to remain competitive in the deregulated environment. The terminated employees had a different view; they filed a class action lawsuit against FPC, claiming that they had been discriminated against because of their age, in violation of the ADEA. In support of their claim, the plaintiffs noted that more that 70% of those terminated were at least 40 years of age or older. The district court decertified the class in 1999, and ruled that as a matter of law, plaintiffs suing under the ADEA could not bring their claims under a disparate impact theory of liability. (Recall that a disparate treatment theory of discrimination requires direct evidence of intentional animus against a protected class. A disparate impact theory, when it is available, may be used by plaintiffs who lack direct evidence of intentional discrimination, but are able to show that a policy that is seemingly neutral on its face, has a much harsher effect on one group than another and that there is no valid reason for the difference.) Since the Eleventh Circuit had not ruled on the issue of the viability of disparate impact claims under the ADEA, the district court certified the question to the circuit court where the decision was affirmed.

There has been a dispute for some time whether or not disparate impact claims may be brought under the ADEA, the arguments centering mostly on the basis of statutory interpretation. Section 623(a)(1)(2) of the ADEA reads as follows:

(a) It shall be unlawful for an employer

(1) to fail or refuse 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 individuals age;

(2) to limit, segregate, or classify his employees in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals age

Note that except for the use of age in place of race, color, religion, sex, or national origin the language of this part of Section 623 of the ADEA is identical to Section 703(a)(1)-(2) of Title VII of the Civil Rights Act of 1964. The Supreme Court held in Griggs v. Duke Power Co., (1971) that Title VII supported a cause of action based on a disparate impact theory of employment discrimination. (That decision was ratified when Congress passed the Civil Rights Act of 1991.) Relying on Griggs, the Second, Eighth, and Ninth Circuits have concluded that disparate impact claims also are allowed under the ADEA.

That interpretation of the ADEA, however, has been called into question by other circuit courts of appeal that have focused upon Section 623(f)(1) of the ADEA which states the following:

(f) It shall not be unlawful for an employer, employment agency, or labor organization

(1) to take any action otherwise prohibited...where the differentiation is based on reasonable factors other than age.

This section has come to be known as the RFOA defense. (Section 623(f)(1) is similar to Section 206(d)(1) of the Equal Pay Act, which has been interpreted by the Supreme Court to preclude disparate impact claims.) In addition, in Hazen Paper Co. v. Biggins, (1993) the Supreme Court noted we have never decided whether a disparate impact theory of liability is available under the ADEA. The Court also noted that [d]isparate treatmentcaptures the essence of what Congress sought to prohibit in the ADEA. In his concurrence, Justice Kennedy sounded even more hostile, concluding that there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA.

Taking note of Section 623(f)(1) of the ADEA, and of the language in Hazen Paper, then, the First, Third, Sixth, Seventh, Tenth, and now the Eleventh Circuits have concluded that disparate impact claims are not viable under the ADEA. As a result, a significant split had developed among the circuit courts of appeal, and it seemed reasonable for the Supreme Court finally to resolve the conflict and to clarify its holding in Hazen Paper. Unfortunately, without giving a reason, the Court has declined to resolve the issue at this time, at least on the basis of the facts presented in Adams.

The question remains whether disparate impact claims should be precluded under the ADEA. It should be noted that plaintiffs cannot win a case only by showing a disparate impact on a protected class. While such evidence might be used by plaintiffs to establish a prima facie case, the employer may justify a disparity by articulating a reasonable factor other than age. Could the plaintiff then prevail by demonstrating that the proffered reason was pretextual, to cover up a discriminatory purpose, as recently held by the Court in Reeves v. Sanderson Plumbing Products, Inc., (2000). While such a resolution is possible, it seems more likely that the Court will decide disparate impact claims are precluded. What seems more certain is that having granted certiorari to resolve the question, the Court will move quickly to find an answer. 

References

Adams v. Florida Power Corporation., 255 F.3d 1322 (11th Cir. 2001).
Adarand Constructors v. Slater, 228 F.3d. 1147 (10th Cir. 2000).
Griggs v. Duke Power Company, 401 U.S. 424 (1971).
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993).
Reese v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).

 

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