Disparate Impact Claims Are Valid Under the ADEA

The U.S. Court of Appeals for the Third Circuit issued a precedential ruling that a facially neutral employer policy which has a “disparate impact” upon older workers can create claims under the Age Discrimination in Employment Act -- even if the policy was designed to protect employees 40 or older, but inadvertently hurt those in other older worker subgroups, such as those in their 50s. 

This ruling meshes with that of the Seventh Circuit, and is based upon U.S. Supreme Court precedent stating that, “the fact that one person in the protected class has lost out to another person in the protected class is …irrelevant, so long as he has lost out because of his age.” The Second and Eighth Circuits hold that a disparate impact claim cannot accommodate a subgroup analysis.

The recognition of disparage impact claims can significantly expand the landscape for age bias claims.  The case arose when workers in Karlo v. Pittsburgh Glass Works claimed to have identified a practice at the glassworks that disproportionately and negatively affected employees age 50 and over in favor of those in their 40s. For example, a Reduction in Force by a Pennsylvania employer that has the effect of selecting the oldest employees with the longest tenure can give rise to a disparate impact claim under the Age Discrimination Act. If this happens to you, give us a call to explore your circumstances in more detail.