Supreme Court to consider disparate-impact claims in age bias cases.

The U.S. Supreme Court has decided to review a Florida case in which the Eleventh Circuit ruled that disparate-impact claims--those alleging that an employer's conduct disproportionately affected a certain group of workers--could not be brought under the federal Age Discrimination in Employment Act (ADEA). (Adams v. Florida Power Corp., 255 F.3d 1322 (11th Cir. 2001), cert. granted, 122 S. Ct. 643 (Dec. 3, 2001).)

Plaintiff advocates are concerned that the Court's decision to consider the Adams case could signal the end of disparate-impact claims under the ADEA. Despite a recent High Court victory for plaintiffs in Equal Employment Opportunity Commission v. Waffle House, Inc. (122 S. Ct. 754 (2002)), which held that an employer's arbitration agreement did not bar the federal agency from enforcing workers' rights, few voiced optimism about Adams.

"Waffle House notwithstanding, the Supreme Court has consistently ruled against plaintiffs in civil rights cases," said University of Southern California law professor Erwin Chemerinsky. "A betting person would say this is a Court more likely to come out against civil rights plaintiffs than in favor of them." (See Supreme Court Review on page 72.)

"We're pretty concerned about what's going to happen" in Adams, said Ed Kramer, head of ATLA's Employment Rights Section. "Part of the problem is that [federal] courts have really limited advocates of older workers."

The plaintiffs in the case, workers at a power plant privatized after deregulation, claimed that company layoffs during a series of reorganizations in the 1990s unfairly targeted older workers. The lower courts that have heard the case, the Eleventh Circuit and a Florida federal district court, have held that the ADEA does not allow plaintiffs to sue under a disparate-impact theory, which claims that the company's layoffs disproportionately affected older workers.

Other federal circuits have split on the issue. The Second, Eighth, and Ninth circuits allow such claims, while the First, Third, Sixth, Seventh, and Tenth have questioned them. The Fourth, Fifth, and District of Columbia circuits have not addressed the issue.

The senior-rights organization AARP is expected to file an amicus brief in the case. "It's going to be an important decision," said AARP senior attorney Laurie McCann. The Court's ruling, she said, will likely determine whether victims of age discrimination have the same legal rights as victims of race, gender, and other forms of discrimination.

Oral arguments before the Supreme Court are scheduled for March 20.

Adams was a case of first impression in the Eleventh Circuit. Florida Power Corp. was a publicly regulated electric-utility monopoly until 1992, when Congress passed the Energy Policy Act and opened the industry to competition. The company terminated Adams and several other plaintiffs during reorganizations that Florida Power said were necessary to stay competitive in the newly deregulated industry.

The plaintiffs sued Florida Power and its parent company. The district court certified the workers as a class, but three years later decertified the group and ruled that the plaintiffs could not file a disparate-impact claim under the ADEA. The appeals court affirmed that decision.

Without these claims, plaintiffs would have to prove their employers' intent to discriminate. That, Chemerinsky said, can be extremely difficult since employers typically don't admit they have discriminated against employees because of their age. "It's much harder to prove intent," he said.

Maintaining disparate-impact claims in age discrimination cases is important, McCann said, because it would signal that age bias is as abhorrent as all other types of discrimination.

If the Supreme Court affirms the Eleventh Circuit ruling, Congress will have to amend the statute to preserve older workers' rights, Chemerinsky said.

--Carolyn Magnuson