Court says intent doesn't have to be factor in age discrimination
Published 04/08/05

Older workers have some limited protection from an employer's plans or procedures which, while not intending to adversely affect older workers more than younger workers, in fact do.

On March 30, the United States Supreme Court in the case of Smith v. City of Jackson , decided that the federal employment age discrimination law, the ADEA, which protects workers over 40 from being discriminated against, not only protects older workers from disparate treatment, but in some limited circumstances protects them from a disparate impact.

For a worker to be successful in such a disparate impact age discrimination claim, he must do more than merely point out that the employer's plan or procedure is relatively less generous to older workers than to younger workers. A worker needs to isolate for the Court and identify specific employment practices that are responsible for any observed statistical disparities between older workers and younger workers. Thereafter, the Court will determine whether or not the employer's plan or procedure is based upon a reasonable factor other than age.

In the Smith case, the City of Jackson had revised its employee pay plan as to police officers with the decision to give raises based upon seniority and position within the police force which resulted in younger, less experienced workers getting higher raises than workers who are over 40 and who had more seniority. The Court found that reliance on seniority and rank was unquestionably reasonable given the City's goal of raising the workers' salaries to match those of surrounding communities and that the City's decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based upon a reasonable factor other than age that responded to the City's legitimate goal of retaining police officers.

Therefore, while the Supreme Court found that, in fact, a disparate impact claim for age employment discrimination is available, such a claim will not be valid if the employer's plan or decision was based upon a "reasonable factor other than age." If an employer is considering treating an employee or employment candidates differently based upon any factor which may tend to negatively impact older workers more than younger workers, the employer should scrutinize the goal it is attempting to achieve to determine whether there is another reasonable achievement method which does not disparately impact older workers.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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