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In this case, [plaintiff] claims that [defendant], by [describe employment practice], has caused an adverse, disproportionate impact on persons  years of age or older. The parties agree that [defendant’s] conduct is neutral on its face, but [plaintiff] contends that in fact people  and older have been treated more harshly by [defendant]. This is what is known in the law as “disparate impact.”
To find a disparate impact, you do not need to consider whether [defendant] intended to discriminate against persons  and older. You must focus on the consequences or results of specific employment practices.
To recover on [his/her] claim of disparate impact, [plaintiff] must prove both of the following by a preponderance of the evidence.
First: [Defendant] has engaged in a specific employment practice or practices that caused [defendant] to [fail to hire]13 [fail to promote] [demote] [terminate] [constructively discharge][plaintiff] because [plaintiff] was [ or older].
Second: [Defendant's] [describe employment practice] had a significantly disproportionate adverse impact on persons  years of age or older.
Note that it is not enough for [plaintiff] to prove that workers  and older have suffered a disparate impact. Nor is it enough to allege that some generalized policy is responsible for a disparate impact. Instead, [plaintiff] must prove that a specific employment practice or practices caused the disproportionate adverse impact on persons  years of age or older.
[Defendant] contends that [describe employment practice] was based on reasonable factors other than age. [Defendant] has the burden of proving each of the following elements by a preponderance of the evidence:
First: [Describe employment practice] is based on factors other than the age of [the plaintiff] [those similarly situated];
Second: [Insert justification for factors] is a legitimate interest of the defendant’s business; and
Third: [Describe employment practice] is reasonably related to achieving [insert justification for factors].
If you find that [plaintiff] has proved each of the elements on which [he/she] has the burden of proof, your verdict should be for [plaintiff], unless you also find that [defendant] has proved this affirmative defense, in which event your verdict should be for [defendant].]
COMMENT Right to Jury Trial
Unlike Title VII, the ADEA provides a right to jury trial for all claims covered by the Act, including, now, disparate impact claims. See 29 U.S.C. § 626(c)(2) (“[A] person shall be entitled to a trial by jury of any issue of fact in any [ADEA] action... regardless of whether equitable relief is sought by any party in such action.”).
Comparison to Disparate Treatment Claims
An ADEA plaintiff may claim either disparate treatment or disparate impact. As discussed in Comment 8.1.1, a disparate-treatment claim seeks to show intentional discrimination – i.e., that “age was the ‘reason’ that the employer decided to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). By contrast, a plaintiff bringing a disparate-impact claim need not show intent to discriminate. Under a disparate-impact theory, “an employer who classifies his employees without respect to age may still be liable... if such classification adversely affects the employee because of that employee’s age.” Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 95-96 (2008) (internal quotation marks omitted).
Comparison to Title VII Disparate Impact Claims
In Smith v. City of Jackson, 544 U.S. 228 (2005), the Court held that the ADEA authorizes recovery on disparate impact claims, comparable to the claim established in Griggs v. Duke Power Co., 401 U.S. 424 (1971), which announced a disparate impact theory of recovery in Title VII cases. The Court observed, however, that the disparate impact ground of recovery in the ADEA is narrower than that provided in Title VII, in two respects. First, the ADEA permits a disparate impact “where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). Second, the 1991 amendment to Title VII modified the Supreme Court’s holding in Wards Cove Packing v. Atonio, 490 U.S. 642 (1989), in which the Court narrowly construed the employer’s exposure to disparate-impact liability under Title VII. Because the 1991 amendment did not affect the ADEA, it follows that the standards of Wards Cove remain applicable to disparate impact actions under the ADEA. Under Wards Cove, “it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Smith v. Jackson, 544 U.S. at 235 (emphasis in original).
Prima Facie Case
“To state a prima facie case for disparate impact under the ADEA, a plaintiff must (1) identify a specific, facially neutral policy, and (2) proffer statistical evidence that the policy caused a significant age-based disparity.” Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 69 (3d Cir. 2017). The age-based disparity may be shown by comparing the effects on 40-and-older workers to those on younger-than-40 workers,14 or by using a dividing line higher than 40 years of age (e.g., by comparing the effects on 50-and-older workers to those on younger-than-50 workers). See Karlo, 849 F.3d at 72 (“A specific, facially neutral policy that significantly disfavors employees over fifty years old supports a claim of disparate impact under the plain text of § 623(a)(2).”).15
Affirmative Defense for Reasonable Factors Other Than Age
A facially-age-neutral practice that disparately affects older workers is not barred by the ADEA “where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). The Supreme Court has distinguished this “reasonable factors other than age” (“RFOA”) defense from a business-necessity defense. For example, in Smith v. City of Jackson, 544 U.S. 228 (2005), the Court affirmed the dismissal of the plaintiffs’ disparate-impact claims, reasoning 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 on a ‘reasonable facto[r] other than age’ that responded to the City’s legitimate goal of retaining police officers.” Smith, 544 U.S. at 242. The Court explained: “While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.” Id. at 243.16 A few years later, in the course of explaining its holding that the RFOA defense is an affirmative defense on which the defendant bears the burdens of both production and persuasion, see Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 87 (2008), the Court declared itself “satisfied that the business necessity test should have no place in ADEA disparate-impact cases,” id. at 97. The Court of Appeals has described the defendant’s task (with respect to the RFOA defense) as a “relatively light burden.” Bryan v. Gov't of Virgin Islands, 916 F.3d 242, 248-49 (3d Cir. 2019) (rejecting a disparate-impact ADEA challenge to a territorial law “[r]equiring that long-tenured employees who declined to retire contribute 3% more of their salaries to the pension system each year” on the ground that the law “reasonably targets long-tenured employees with higher salaries — not all older workers — to encourage them to retire from the Government payroll and to pay more into the pension system”).
(Last Updated July 2019)
13 The Third Circuit has not taken a position as to whether the disparate impact theory is available to challenge hiring discrimination.
14 See 29 U.S.C. § 631(a) (“The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.”).
15 This “subgroup” approach to ADEA disparate-impact claims works for “subgroups with ‘lower boundaries,’ not ‘upper boundaries.’” Karlo, 849 F.3d at 77. Thus, for example, the approach would not permit comparison of the impact on “a ‘banded’ 50-to-55 subgroup” to the impact on those outside the banded subgroup. Id. (noting that “the ADEA protects only ‘relatively old worker[s] from discrimination that works to the advantage of the relatively young’” (quoting Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 590–91 (2004))).
16 See also Karlo, 849 F.3d at 84 (“When a defendant proffers a RFOA, the plaintiff can rebut it by showing that the factor relied upon is unreasonable, not by identifying twenty other practices that would have been reasonable instead.”).