In a decision that surprised many, the U.S. Supreme Court reversed itself in an important case about how employees prove age discrimination. On April 1, in Adams v. Florida Power Corp., No. 01-658, the Supreme Court decided not to decide the issue of whether under the Age Discrimination in Employment Act (ADEA) employees may base a claim of liability under the “disparate impact” theory, which is a common theory of liability in cases of other types of discrimination. The court had previously decided to review an 11th Circuit case ruling which held that disparate impact theories could not be advanced under the ADEA. The Supreme Court’s about-face lets the 11th Circuit ruling stand.

In disparate impact cases, an employee, or group of employees, allege that a hiring practice, while “neutral” on its face, nonetheless has a disparate impact on a protected group. Under this theory, it is not necessary to prove discriminatory intent. Rather, it is sufficient to show that the challenged employment practice creates a statistical disparity in employment actions (such as hiring, promotions training, etc). When employees make this showing, the burden is then on the employer to show that the challenged practice is job related for the position in question and consistent with business necessity. If the employer shows the employment practice is job related or is a business necessity, the employee can still prevail by showing that an alternative employment practice would achieve the same purpose without adversely affecting a protected group and the employer failed to adopt that alternative practice.

Because discriminatory “intent” is not necessary in the disparate impact theory, the theory is often a useful way to prove discrimination in employment decisions affecting a large group of people. The impact of the Supreme Court’s reversal on federal employees is uncertain at best. Because some circuit courts, other than the 11th, have accepted the disparate impact theory, it is possible that the EEOC will continue to apply that theory in federal sector cases it, or its administrative judges, decide. On the other hand, it is also possible that the EEOC may see the Supreme Court’s decision, allowing the 11th Circuit’s rejection of the disparate impact theory to stand, as a signal that that theory is no longer viable. We will have to wait to see how the EEOC decides to act. It should be noted that the Supreme Court’s reversal affects only age discrimination cases. Title VII, covering discrimination on such bases such as sex, race, color, religion and national origin, specifically allows for disparate impact cases.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **