Age discrimination claims get a boost from the court.

This is a crucial question in all areas of employment discrimination: Must a plaintiff prove discriminatory intent, or is proof of disparate impact enough? In reality, many civil rights plaintiffs can show that an employer's action has a discriminatory effect against a particular group, but not that the employer intentionally discriminated. Requiring proof that there was an impermissible purpose--that is, discriminatory intent--is often an insurmountable obstacle, but allowing proof of disparate impact can clear the way for claims that otherwise would be barred.

The Supreme Court has held that constitutional claims for violations of equal protection, even for race or gender discrimination, require proof of discriminatory intent. (1) On the other hand, in the landmark ruling in Griggs v. Duke Power Co., the Court held that plaintiffs suing under Title VII of the 1964 Civil Rights Act--which prohibits employment discrimination based on race, gender, or religion--could prevail by proving either disparate impact or discriminatory intent. (2)

A crucial issue that has divided the federal courts of appeals is whether plaintiffs can bring disparate-impact claims under the Age Discrimination in Employment Act (ADEA), which prohibits employers from discriminating against workers who are 40 or older. (3) The First, Seventh, Tenth, and Eleventh circuits have ruled that they cannot, but the Second, Eighth, and Ninth circuits have allowed suits based on this theory. (4)

Recently, in Smith v. City of Jackson, Mississippi, the Court agreed with the latter circuits. The 5-3 decision--with no majority opinion (Chief Justice William Rehnquist did not participate)--is a major victory for civil rights plaintiffs. (5)

Justice John Paul Stevens wrote the plurality opinion, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Stevens stressed that the ADEA and Title VII use identical language, meaning that Congress obviously based the ADEA on the earlier law: "[W]hen Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes." (6) The Court concluded that "Griggs therefore is a precedent of compelling importance." (7)

A key issue revolved around an ADEA provision that narrows the law's coverage by permitting any "otherwise prohibited" action "where the differentiation is based on reasonable factors other than age." (8) Justice Sandra Day O'Connor, for example, disagreed with the plurality's holding, stressing that this provision allows employers to engage in practices that may have a disparate impact on older workers. (9)

But Stevens rejected this view. He said Congress created a defense to liability where there was a non-age-based explanation for an employer's practices: "[R]ather than support an argument that disparate impact is unavailable under the ADEA, the RFOA [reasonable factors other than age] provision actually supports the opposite conclusion." (10) In other words, employers can be sued for practices that have a disparate impact on older workers, but they have a defense if they can show that their actions were based on reasonable factors other than age.

But the Court also concluded that "the scope of disparate-impact liability under ADEA is narrower than under Title VII." (11) The Court pointed to the "reasons other than age" provision and said that Congress understandably believed that unlike race, a worker's age can affect his or her job performance. (12) However, the Court was not clear about how disparate impact will be different under the ADEA compared with Title VII.

Justice Antonin Scalia cast the surprising fifth vote for the majority, emphasizing the need to defer to the Equal Employment Opportunity Commission's (EEOC) interpretation of the ADEA. Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., federal courts must defer to agency interpretations of their enabling statutes. (13) Scalia called Smith "an absolutely classic case for deference to agency interpretation" (14) and concluded: "The EEOC has express authority to promulgate rules and regulations interpreting the ADEA. It has exercised that authority to recognize disparate-impact claims. And for the reasons given by the plurality opinion, its position is eminently reasonable. In my view, that is sufficient to resolve this case." (15)

Nonetheless, the Court ruled against plaintiff Azel Smith, who claimed that the police department's policy of granting promotions had the effect of favoring younger officers over older ones. The Court explained that under its earlier decision in Wards Cove Packing Co. v. Antonio, (16) "it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to an impact. Rather, the employee is 'responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.'" (17)

In other words, statistics showing disparity are not enough; the plaintiff must point to the actual policy or practice that causes the discriminatory impact. The Court said that Smith failed to do this.

Furthermore, it was "clear from the record that the city's plan was based on reasonable factors other than age." (18) Specifically, the differences in salary among police officers in Jackson could be explained by the city's understandable desire to give raises based on seniority and position. (19)

Although Smith lost, his case is a victory for civil rights plaintiffs. The practical reality is that it is much easier for a plaintiff to prove disparate impact than discriminatory intent. With this ruling, the Court has thrown open the courthouse doors to disparate-impact age discrimination claims.

Notes

(1.) See, e.g., Washington v. Davis, 426 U.S. 229 (1976) (race); Personnel Admin'r of Mass. v. Feeney, 442 U.S. 256 (1979) (gender).

(2.) 401 U.S. 424 (1971).

(3.) 29 U.S.C. [section] 623 (a) (2) (2000).

(4.) For an excellent summary of these cases, see BARBARA T. LINDEMANN & DAVID D. KADUE, AGE DISCRIMINATION IN EMPLOYMENT LAW 416-18 (2003).

(5.) 125 S. Ct. 1536 (2005).

(6.) Id. at 1541.

(7.) Id.

(8.) 29 U.S.C. [section] 623(f) (1).

(9.) 125 S. Ct. 1536, 1557-60 (O'Connor, J., concurring in the judgment).

(10.) Id. at 1544.

(11.) Id.

(12.) Id. at 1545.

(13.) 467 U.S. 837 (1984).

(14.) 125 S.Ct. 1536, 1546 (Scalia, J., concurring in the judgment). (15.) Id. at 1549.

(16.) 490 U.S. 642 (1989).

(17.) 125 S. Ct. 1536, 1545 (quoting Wards Cove, 490 U.S. 642, 656) (emphasis in original).

(18.) Id. at 1549.

(19.) Id. at 1546.

ERWIN CHEMERINSKY is Alston & Bird Professor of Law at Duke University School of Law.