“Disparate Impact” Revived?

The Supreme Court has just decided a case dealing with age discrimination that could have a greater impact in race discrimination than the Michigan affirmative action cases. As USA Today reported today,

Older workers can sue over pay or benefit plans that favor younger employees, even if no evidence of deliberate age discrimination exists, the Supreme Court ruled Wednesday in a decision that could have a major effect on the nation’s workforce.

By a 5-3 vote, the court ruled that in addition to covering intentional bias, the Age Discrimination in Employment Act covers workplace practices that appear neutral but disproportionately affect workers over age 40.

….

The ruling puts a new category of age claims on the same footing as those filed under Title VII of the Civil Rights Act of 1964, which protects against race and sex discrimination. The high court earlier ruled that Title VII covered not only overt discrimination but practices that appeared fair, but had the effect of being discriminatory.

I have written about the perfidy of “disparate impact” too many times to cite (though you may want to consider discussions here, here, and here for starters). Although Joan Biskupic, the USA Today Supreme Court reporter, is usually quite astute, her analysis here would have been useful if she had something about exactly what “footing” disparate impact claims currently occupy in race discrimination law. A good argument can be made that, regarding race, the courts had been steadily moving away from “disparate impact.” Indeed, as James Brudney, a labor law expert at Ohio State, was quoted in Linda Greenhouse’s more balanced article in the New York Times, “the decision was surprising given the trend toward foreclosing what are known as ‘disparate impact’ claims.”

If the effect of this case, Smith v. City of Jackson, is to revive the declining “disparate impact” analysis of discrimination claims in the racial arena, it will be bad news indeed, but there is some reason to hope its damage can be contained. As the Wall Street Journal article on the case pointed out, the 5-3 opinion written by Justice Stevens

gave employers an easier line of defense for age claims than they have in suits alleging race or sex discrimination. “Business necessity” is needed to justify disparate impact along lines of sex or race, but in age-discrimination cases, employers can take actions that disadvantage older workers if, as the Age Discrimination in Employment Act reads, “the differentiation is based on reasonable factors other than age.”

While the court opened the door a bit further for future age claims, it frustrated the plaintiffs in the case before it. The suit was brought by senior police officers from Jackson, Miss., who claimed that the city’s salary plan unfairly favored younger officers, who got higher percentage raises than those with more seniority. The city argued it needed to boost pay at the low end to recruit new officers. The court found that the city’s pay plan was “unquestionably reasonable.”

Justice O’Connor, reasonable for a change, dissented, seeing “no reason to expand the enforcement of the age act with disparate impact claims.”

If this case should lead to the revival of successful disparate impact claims in the racial arena, perhaps Justice O’Connor can persuade her colleagues that she was right in 25 years (when she’ll be 100) when she revisits affirmative action and surveys the damage her Grutter opinion will have done.

Say What? (2)

  1. actus April 1, 2005 at 10:48 am | | Reply

    “Indeed, as James Brudney, a labor law expert at Ohio State, was quoted in Linda Greenhouse’s more balanced article in the New York Times, “the decision was surprising given the trend toward foreclosing what are known as ‘disparate impact’ claims.””

    I thought it was a statutory interpretation issue, not a ‘trend’ issue.

  2. notherbob2 April 2, 2005 at 10:42 am | | Reply

    The number one reason given for the employer practice of not hiring older workers is

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