Disparate Impact Discrimination and the ADEA: Coming of Age

Abstract

Although the theory of disparate impact discrimination was not initially cognizable under Title VII, the Supreme Court in Griggs v. Duke Power Company recognized its viability [1]. Prior to Griggs, individuals could only make a claim under Title VII if they could prove disparate treatment, which occurs when an employer intentionally treats members of a protected class less favorably because of their status in that class. Disparate impact discrimination occurs when an employer’s facially neutral employment practice adversely affects a person in a protected class, and that fact cannot be explained by business necessity. While disparate impact actions have been recognized under the Civil Rights Act since 1971, the circuit courts disagreed whether this theory of discrimination applied to the Age Discrimination in Employment Act. This article examines the 2005 Supreme Court decision that recognized the ADEA authorizes recovery in disparate impact cases. It is commonly known that Title VII of the Civil Rights Act of 1964 makes a number of employment actions unlawful [2]. At the time the act was passed, Congress considered and rejected amendments to the act that would have included older workers in the protected classes of Title VII [3]. However, the secretary of labor subsequently investigated the issue of age discrimination and concluded that it was common for employees to be discriminated against the workplace because of their age and inaccurate stereotypes about the abilities of older workers [4]. As a