Disparate Impact of Negative Impact: Future of Non-Intentional Discrimination Claims Brought by the Elderly

In 2005, the U.S. Supreme Court interpreted the Age Discrimination in Employment Act (ADEA) as permitting plaintiffs to proceed under a disparate impact theory of discrimination. This decision affirms that plaintiffs who are at least forty years old may challenge employment decisions resulting from policies that are neutral on their face but have a disproportionate impact on individuals in the protected class.\nAlthough this decision was heralded as a new tool to fight age discrimination in employment, Professor Sperino argues that the decision will have serious and detrimental effects on the ability of elderly employees to seek redress for unfavorable employment decisions. Professor Sperino states that the Supreme Court, while finally recognizing that "disparate impact" claims are viable under the ADEA, also placed many obstacles in the way of litigants who want to challenge such policies. These new obstacles, along with decreased incentives for elderly plaintiffs to pursue disparate impact claims, will result in many potential claims being abandoned or being pursued unsuccessfully.