A

AGE DISCRIMINATION

Prejudicial treatment or denial of rights based on age.

Smith v. City of Jackson, Mississippi

Congress enacted the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §621 et seq. to protect older workers from arbitrary employment practices. Such practices that the act prohibits include, for instance, setting up age requirements unrelated to the ability needed for the job. The statute also addresses the problem of the increasing numbers of older workers who are unable to regain employment after job displacement, a situation resulting in deterioration of skills, morale, and employability. While similar in wording to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A, §§2000e et seq., the ADEA has some defenses and provisions uniquely applicable to age discrimination. One question that lingered concerned whether a plaintiff needed to prove that an employer intentionally discriminated on the basis of age (disparate treatment). Proving intent is usually very difficult, leading plaintiffs to argue that the ADEA allowed them to sue on the theory that the employer used a facially neutral test or other employment practice that unjustifiably resulted in discrimination against members of a protected group (disparate impact).

Although the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) had issued regulations allowing disparate impact in ADEA cases, the circuit courts of appeals were divided on this issue. The Supreme Court resolved the matter in Smith v. City of Jackson, Mississippi, __U.S. __, 125 S.Ct. 1536, __ L.Ed.2d __ (2005), holding that the ADEA did permit complaints based on disparate impact. The Court concluded that both the language of the statute and the EEOC regulations justified this interpretation. However, the Court also made clear that employers could rebut agediscrimination complaints if they could demonstrate that "reasonable" factors led to the allegedly discriminatory actions.

The case arose out of the actions of the Jackson, Mississippi, city government, when it gave raises to its police officers in 1999. The new pay plan, which sought to make the city's salary structure competitive with other municipalities, gave substantially larger pay increases to employees who had five or fewer years of tenure. This had an unfavorable effect on employees who had served on the force for many years and who were over the age of 40. A group of 30 officers and dispatchers filed an ADEA lawsuit, alleging that the pay plan discriminated against them on disparate-treatment and disparate-impact grounds. The federal district court dismissed the lawsuit on both counts, but the Fifth Circuit Court of Appeals reversed on the disparate-treatment ground. The appeals court believed that the employees were entitled to conduct discovery to see whether the city had intentionally discriminated against older workers. However, the appeals court affirmed the dismissal of the disparate-impact count, ruling that this theory of liability was not allowed under the ADEA. Smith v. City of Jackson, Miss., 351 F.3d 183 (5th Cir. 2003).

The U.S. SUPREME COURT unanimously ruled that the police officers' suit should be dismissed, but in a 5-3 vote (Chief Justice WILLIAM REHNQUIST did not participate due to illness) the Court overturned the disparate-impact ruling, holding that such suits were permitted under the ADEA. Justice John Paul Stevens, who at age 84 was the oldest member of the Court, wrote the majority opinion. Justice Stevens noted that when Congress wrote the Civil Rights Act of 1964, it rejected the inclusion of age-discrimination provisions but directed the Secretary of Labor to make a report on the issue. The secretary's 1965 report found that age-based employment discrimination existed, thus paving the way for the enactment of the ADEA in 1967. Many of its provisions were identical to Title VII's provisions, which banned discrimination based on race, religion, and sex. This similarity was important because Title VII permitted lawsuits based on disparate impact. An employment policy or action that appeared neutral but had the effect of disproportionately hurting a group of workers who were of the same race, sex, or religion could be illegal under Title VII. Justice Stevens concluded that Congress had intended to make the ADEA very similar to Title VII. Therefore, the body of law developed for disparate impact under Title VII could be applied to ADEA complaints.

Justice Stevens rejected the claim that the Court had previously ruled against disparate impact in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). In that case, three justices had clearly stated that disparate-impact analysis had no place in agediscrimination suits, while the majority decision focused on the centrality of disparate treatment in such suits. Justice Stevens ruled that the Court had not specifically addressed disparate impact in Hazen, and therefore the Court was not precluded from applying disparate-impact liability. In addition, the EEOC had "consistently interpreted the ADEA to authorize relief on disparate-impact theory."

Having granted ADEA plaintiffs the right to claim disparate impact, the Court provided some relief to employers by emphasizing that they could defeat claims by asserting "reasonable" factors for decisions that penalized older workers. These factors included the city of Jackson's desire to bring its "salaries in line with that of surrounding police forces." In addition, the police officers could not identify "any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers." A generalized policy was not enough to sustain a disparate-impact claim. Therefore, the Court dismissed the disparate-impact claim on the merits of the case.