In disparate-treatment cases brought under Title VII of the Civil Rights Act of 1964 or the Age Discrimination in Employment Act (ADEA), plaintiffs must show that their employers treated them less favorably because of the employee’s membership in a protected class, such as race, gender, or age. The employee must prove through direct or circumstantial evidence that the discrimination was intentional. In contrast, a disparate-impact claim does not require proof of an intention to discriminate. Instead, showing that a facially neutral employment practice has a disproportionately adverse impact on a protected group states a prima facie case of unlawful disparate-impact discrimination.
The premise of disparate-impact claims “is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” See Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1199 (10th Cir. 2006) (citing Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1242 (10th Cir. 1991), superseded by statute, Civil Rights Act of 1991.
The disparate-impact theory has long been recognized as a viable theory of discrimination under Title VII. In 1989 the Supreme Court established the burden-shifting analysis applicable to Title VII disparate-impact claims in Ward’s Cove Packing v. Antonio, 490 U.S. 657 (1989). The Court held that a plaintiff has the burden of “isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” The employer then carries “the burden of producing evidence of a business justification for his employment practice.” Employers bear the burdens of both production and persuasion in establishing the business necessity defense. An employer may satisfy this affirmative defense by showing that the challenged action is “related to safe and efficient job performance and is consistent with business necessity.”
The Supreme Court in Smith v. City of Jackson, 544 U.S. 228 (2005), articulated the standard for analyzing disparate-impact claims under the ADEA. To establish a prima facie case, the plaintiff once again is “responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Even after a prima facie case is established, if an employer then shows that the challenged employment practice is “based on reasonable factors other than age” (commonly abbreviated RFOA), a disparate-impact claim cannot survive. City of Jackson left open the issue of who bears the burden of proof on the RFOA defense.
In Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008), the Supreme Court answered that question by holding that the RFOA defense is an affirmative one, for which employers bear the burdens of production and persuasion. The Meacham Court acknowledged the fears of many employers that making the RFOA defense an affirmative one could “encourage strike suits or nudge plaintiffs with marginal cases into court, in turn inducing employers to alter business practices in order to avoid being sued.” To date, these fears have not been realized; the City of Jackson and Meacham decisions have not resulted in a flood of successful disparate-impact age- discrimination claims.
In the numerous other disparate-impact ADEA cases heard following City of Jackson and Meacham, courts have rejected plaintiffs’ prima facie cases on the following grounds: (1) failure to isolate and identify a specific employment practice that caused a disparate impact; (2) absence of sufficient statistics to support their claims; and (3) failure to identify a protected group affected by the alleged discriminatory practice or policy.
Even when a prima facie case can be established, few ADEA disparate-impact challenges in the aftermath of City of Jackson and Meacham have survived the RFOA analysis because defendants have established that their rationale for engaging in the challenged behavior was reasonable. Unlike the business necessity defense, the RFOA inquiry includes no requirement to ask whether there are other ways for the defendant to achieve its goals that do not result in a disparate impact on a protected class.
In its notice of proposed rule-making published on March 31, 2008, the Equal Employment Opportunity Commission (EEOC) stated its intention to bring its current regulations into line with the Supreme Court’s decision in City of Jackson. The EEOC proposed to amend its regulations to provide that “an employment practice that has an adverse impact on individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a ‘reasonable factor other than age.’” The EEOC also proposed to clarify that although the plaintiff bears the burden of establishing a prima facie case of disparate-impact age discrimination, the employer bears the burden on the RFOA defense.
The EEOC’s second notice of proposed rule-making, on February 18, 2010, addresses the scope of the RFOA defense “in light of recent Supreme Court decisions” and purports to clarify the scope of the RFOA defense “[c]onsistent with [City of Jackson] and Meacham.” The proposed rule appears to contradict the Supreme Court’s decision in Meacham, however, and, if adopted, will likely be challenged. This proposed regulation provides that whether the RFOA defense applies “must be decided on the basis of all the particular facts and circumstances surrounding each individual situation” and that “[a] reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances.” The EEOC lists the following nonexhaustive factors as relevant to a determination of whether an employment practice is reasonable: (1) whether the employment practice and the manner of its implementation are common business practices; (2) the extent to which the factor is related to the employer’s stated business goal; (3) the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately; (4) the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers; (5) the severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and (6) whether other options were available and the reasons the employer selected the option it did.
Although disparate-impact ADEA claims may continue to fail under the City of Jackson and Meacham standards, any statistical evidence showing a disparity on the basis of age can be used as evidence of discrimination in disparate-treatment cases, including class actions brought under the ADEA. In fact, the Supreme Court recognized that such statistical evidence is relevant in disparate-treatment claims alleging both individual and class-wide pattern-or-practice age discrimination claims. Furthermore, some state antidiscrimination statutes authorize disparate-impact claims, and those statutes may be broader in scope than the ADEA. Thus, such statistics may still present troublesome problems for employers facing disparate-treatment or state disparate-impact age-discrimination claims. Notably, when evidence of a disparate impact is presented in a disparate-treatment case, employers often face an uphill battle in convincing a judge to grant summary judgment.
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