The curious case of disparate impact under the adea: Reversing the theory's development into obsolescence

Abstract

The recognition of disparate impact liability in Griggs v. Duke Power Co. has been heralded as “[t]he single most important Title VII decision, both for the development of the law and in its impact on the daily lives of American workers.” The curious thing about disparate impact since becoming a theory of recovery under the Age Discrimination in Employment Act (ADEA), however, is that its availability to victims of age discrimination has narrowed in scope. While the Supreme Court’s decision in Meacham v. Knolls Atomic Power Laboratory recently reaffirmed application of the theory to the ADEA, it also secured its practical obsolescence as a valid means of establishing liability for age discrimination. Faced with troubling economic times and an aging American workforce, the importance of providing more than just lip service to these claims is apparent now more than ever. In reaffirming the theory’s availability the Court clarified a central issue for ADEA disparate impact plaintiffs by placing the burden of proof for articulating the reasonable factor other than age (RFOA) defense squarely upon the defendant. Unfortunately for victims of age discrimination, the standard emerging from the Court’s earlier recognition of ADEA disparate impact claims in Smith v. City of Jackson has already made overcoming the defense a nearly impossible task.

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