Age Discrimination and Disparate Impact: How Will the Supreme Court Weigh In?

As you probably know, the Supreme Court intends to rule on an age discrimination case, Smith v. City of Jackson, involving disparate impact. This document provides a very brief background to disparate impact and age discrimination. As described in USA Today:

At issue is whether plaintiffs in age discrimination lawsuits must prove that employers intentionally discriminated, or merely show that an employment policy — such as Jackson’s pay raises for police — are disproportionately unfair to workers older than 40.

From the sounds of it, the Supreme Court judges seemed somewhat displeased with what the lawyer representing

the organization being sued said. More on that below!

Experienced attorneys argue that it can be very difficult to prove intention to discriminate in age discrimination cases, making disparate impact theory often an easier way for plaintiffs to win such a case.

Another point of contention appeared to be how many disparate impact cases might be filed if the Supreme Court accepted this approach for age discrimination. The plaintiffs’ lawyer responded with 74; one of the Supreme Court judges noted that if the Supreme Court accepted the disparate impact argument, the number of such lawsuits might increase. This seems like a silly point to me; just because there might be a lot of medical malpractice lawsuits, should we prohibit such suits?

Another article described a funny moment was had when the defense lawyer asserted that “Our physical and mental capacities deteriorate over time.” He went on to say that there often are legitimate reasons to exclude older workers from jobs.

Given that all but one of the judges is over 65, some of the judges were abit miffed with the defense attorney’s statements. In response, Justice Ruth Bader Ginsburg observed that Verdi wrote operas till he was nearly 80 years old.

We need to keep in mind that evidence of disparate impact is not by itself enough for the plaintiffs to prevail; the company can still argue that the factor that created the disparate impact was job-related and consistent with business necessity. If this approach suffices for race and gender discrimination, I for one have a difficult time understanding why it doesn’t suffice for age discrimination issues!

Lower courts in this case were not sympathetic to the plaintiffs, which made some wonder (like myself) whether the plaintiffs could possibly prevail in the Supreme Court.

I believe that intentional discrimination will become increasingly difficult for plainatiffs to prove, making the disparate impact theory much more appealing to plaintiffs’ attorneys.

A decision is expected in the middle of 2005.

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