4.2.2 Legal Theories for Showing Age Discrimination

Given a statutory standard of the types of employer behavior that constitute employment discrimination, there are, in general, two theories1 of how a given set of situation-specific facts and circumstances can establish that the employer's challenged actions were taken for reasons of age: disparate treatment and disparate impact.

To prevail under an analysis based on disparate treatment, the plaintiff must show that an adverse employment action (failure to hire, demotion, termination, etc.) was the result of the employer's deliberately discriminating against the plaintiff on the basis of age. In other words, the burden of proof is on the plaintiff to show that the employer 's challenged actions were taken for reasons of age. The classic example of evidence of disparate treatment would be an employer that refuses to hire someone, saying “Although you are fully qualified, you are too old for this job.” However, as discussed above, the Supreme Court has ruled that actions that have negative effects on older workers do not constitute disparate treatment if they are motivated by factors that are only indirectly related to age.2

To prevail under an analysis based on disparate impact, the plaintiff must first show that the effects of a facially neutral policy or practice disparately disadvantage members of a protected class. If disparate impact is thus shown, the employer must show that the employer 's challenged employment actions were justified on the grounds of business necessity. Although it is widely used in cases of racial and sexual discrimination, the circuit courts are divided on the extent to which disparate impact may be used to demonstrate violations of the ADEA.3 The Supreme Court has


In legal terms, a “theory” is used to establish how a particular factual situation does or does not meet a given legal standard.


Hazen Paper v. Biggins (91-1600), 507 U.S. Supreme Court 604 (1993). In this case, the Supreme Court held unanimously that firing someone because his pension is about to vest is not age discrimination, even though age and pension vesting status are correlated positively with each other. Moreover, the opinion makes clear that even closer correlations would be subject to the same analysis.


Five circuit courts have rejected the applicability of evidence of disparate impact to cases of age discrimination: the First (Mullin v. Raytheon Co., 164 F.3d 696, 703 (1st Cir. 1999)), the Third (DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 732-34 (3d Cir.), cert. denied (1995)), the Seventh (Salvato v. Illinois Dep't of Human Rights, 155 F.3d 922, 926 (7th Cir. 1998)), the Tenth (Ellis v. United Airlines, Inc., 73 F.3d 999, 1008-09 (10th Cir.), cert. denied, 116 S. Ct. 2500 (1996)), and the D.C. circuit courts. Four circuit courts continue to recognize its applicability: the Second (District Council 37 v. New York City Dep't of Parks & Recreation, 113 F.3d 347, 351 (2d Cir. 1997)), the Eighth (Lewis v. Aerospace Comm. Credit Union, 114 F.3d 745, 750 (8th Cir. 1997), cert. denied, 118 S. Ct. 1392 (1998)), and the Ninth (Mangold v. California Pub. Util. Comm'n, 67 F.3d 1470, 1474 (9th Cir. 1995)). The Fourth Circuit Court appears to assume that evidence of disparate impact is available to age plaintiffs but has provided no supporting analysis. The same can be said for the Court of Appeals for the District of Columbia. See, e.g., Koger v. Reno, 98 F.3d 631 (DC Cir. 1996). Two circuit courts have questioned the viability of a disparate impact claim under the ADEA but have not ruled explicitly on the matter: the Sixth (Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1048 (6th Cir. 1998)) and the Eleventh (Turlington v. Atlanta Gas Light Co., 135 F.3d 1428 (11th Cir. 1998)). The Fifth Circuit Court has not addressed the issue—but its decision in Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996), in which it emphasizes the differences between Title VII and the ADEA, suggests that it would find the theory unavailable to those alleging age discrimination. Most recently, following a ninth circuit court decision upholding evidence of disparate impact, the employer has appealed the circuit court decision to the Supreme Court. It is possible that the Supreme Court will rule decisively on the matter of disparate impact in the future.

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