Just a brief follow-up to this not-so-brief post: “Supreme Court: disparate impact theory available under age act (ADEA)”
One article I’ll cite shows it’s possible to write a very concise and accurate summary of the decision (probably better than mine), yet fall for the spin being pushed by the losing parties (the employees) and their supporters.
It also substantiates my predictions.
Another item, a post by a very astute blawger to whom who I frequently link, shows that those who get it, get it right on this case.
Today’s ABA Journal eReport has this:
“Impact or Intent; Supreme Court Ruling Widens Path for Age Bias Suits” by David L. Hudson Jr.
For those who may not fully understand the disparate impact theory, this article has a very clean and clear explanation:
[D]isparate impact claims address employer actions that, while appearing facially neutral, result in a discriminatory impact on a protected class.
An example of this would be a policy that required all employees to be a certain height or taller. While the policy might seem fair because it is evenly applied to all employees, its enforcement might discriminate against women, a legally protected class.
Unlike in disparate treatment claims, an employer need not act with discriminatory animus to be liable.
As I expected, this article quotes several experts unqualifiedly describing the outcome of this case as pro-employee.
One describes it as “a very valuable tool for older employees”, who frequently lack ‘smoking gun’ evidence of discrimination.”
(Never mind that under the disparate impact theory a successful claim can be brought not only in the absence of such evidence of discrimination, but in the absence of any discrimination at all.)
Another expert calls the decision “a victory in the war for older people.”
A Cornell professor, who should know better, he also says: “It is important to older workers to be able to prove that practices with a disparate impact on them are illegal.”
Perhaps he was misquoted — even under the much more pro-employee Title VII disparate impact standard, not every practice with a disparate impact is illegal, just those that cannot be justified as a business necessity.
Consistent with my speculative explanation of why Justice Thomas voted with the dissenters, an attorney quoted for the defense side correctly stated: “The disparate impact theory is subject to abuse and can be counterproductive by encouraging employers to adopt surreptitious quotas.”
In agreement with one of my predictions, another attorney is quoted as saying: “The decision will definitely have negative ramifications, including more lawsuits against employers.”
Also in agreement with me, this last attorney also says she “believes employers are likely to successfully defend against these claims, [but] . . . that is cold comfort to employers who still have to defend this type of litigation.”
And Michael Fox at the Jottings By An Employer’s Lawyer blog says this:
“Supreme Court - ‘Adverse Impact Lite’ Theory Available Under the ADEA”
Michael has it absolutely right:
[N]ot all disparate impact theories are created equal, and the ADEA version is in fact less than an adverse impact theory under Title VII. . . .[W]hile we do have adverse impact under the ADEA, it is fair to call it “adverse impact lite”. Not terribly palatable to employers, but certainly more so than the full weighted version which could have been forthcoming.
Does it make a difference? Well it did to the employees suing the City of Jackson as the Supreme Court concluded that they had not stated a case of adverse impact under the newly announced theory . . . .
My addition would be that I don’t foresee many cases in which age plaintiffs would do any better, so this last point is the most important one of all.
Folks, this was a unanimous loss for employees, not a victory!
Unless weak-kneed employers knuckle under to this lawsuits by the dozens, which would not surprise me.
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