In 1964 Congress
passed the Civil Rights Act. Its Title VII prohibited employment discrimination
based on race, color, gender, religion, or national origin. In a few subsequent years, the courts had developed
two distinct evidentiary theories which would support a finding
of unlawful job discrimination under Title VII.
The first, and most obvious, is "disparate treatment." Evidence assessed under this theory is direct.
That is discrimination clearly based upon or the result of
a person's protected status (e.g., race, gender, national origin).
The courts soon concluded that unlawful discrimination might
not be so blatant and easily proved.
Instead, it could be found in seemingly benign practices
which had a "disparate impact." The classic case, and one of the first under
this theory, is Griggs v.
Duke Power Co., where in 1971 the Supreme Court found an employer's
minimum education requirement for low-level manual labor positions
had the effect of excluding a disproportionate number of African
American applicants.
In 1967 Congress
passed the Age Discrimination in Employment Act (ADEA).
Originally, it prohibited employment discrimination based
on age against those ages 40 - 65. Subsequent amendments changed the maximum age
to 70 and then eliminated the upper limit completely. In the last few years the Supreme Court has
recognized the possibility of employment discrimination favoring
younger employees/applicants within the protected age range (e.g.,
ages 40 – 50) compared to older employees/applicants within the
protected age range (e.g., over-65).
However, many
federal courts refused to recognize the "disparate impact"
approach in proving age discrimination.
Until ----
March 30, 2005 when the Supreme Court decided Smith, et al. v. City of Jackson, Mississippi,
et al., 544 U.S. 228 (2005).
In that case the Court specifically allowed reliance on the
disparate impact theory but restricted its use if the employer could
show that the challenged practice or policy is based on a reasonable
factor other than age. This
standard is substantially less stringent than required of employers
under most evidentiary analyses under in Title VII cases.
So
why do employers care about this legal nicety? Because, according to the AARP, 68% of current workers ages 50 – 70 (i.e., "Boomers")
plan to work during their retirement or forgo retirement altogether.
As employers, have you ever thought of older workers (Boomers)
in terms of diversity? What would an age-based statistical portrait
of your workforce and hiring practices & policies reveal? Have you ever thought about what impact the
most seemingly innocuous, even kind-hearted, employment policy might
have on the newest class of potential class-action litigants? Is it a whole new ball-game? No,
employers have been aware of the need for this type of foresight
since at least 1971. However,
now the disparate impact analysis of almost everything is at least
a couple of notches higher on the to-do list.
