Smith V. City of Jackson: Does It Really Open New Opportunities for ADEA Plaintiffs to Recover under a Disparate Impact Theory?

I. INTRODUCTIONThe recent Supreme Court decision in Smith v. City of Jackson1 has opened, or more properly reopened, a door previously closed in several federal appellate circuits for individuals alleging violations of the Age Discrimination in Employment Act (ADEA).2 The ruling allows a plaintiff to prove that age discrimination has resulted from a facially neutral practice or policy that has a on persons in the age group protected by the ADEA.3 To prove discrimination by disparate impact, the plaintiff need not show that the employer discriminated intentionally.4To appreciate the implications of this decision, it is necessary to take into account previous court rulings in cases where discrimination by disparate impact has been alleged. The difficulties encountered in the past by plaintiffs who have attempted to prove discrimination by disparate impact under Title VII of the Civil Rights Act of 19645 portend that those who undertake to do so under the ADEA will find it no easier. In fact, it will be more difficult. Even those circuits that have permitted ADEA disparate impact claims have been resistant to finding that the plaintiffs have met their burdens of proof under this theory.II. THE ORIGIN OF DISPARATE IMPACTThe Supreme Court first announced the disparate-impact order and allocation of proof in Griggs v. Duke Power Co.,6 a racediscrimination action brought under Title VII. Chief Justice Burger's opinion held that a member of the protected class could make out a prima facie case of discrimination by showing that a facially neutral policy has a greater negative impact on that class than on those outside of the class.7 It eliminated the need for proving intent as an element of discrimination;8 Griggs focused on the result of the act rather than on the mental state of the actor.The Griggs plaintiffs challenged their employer's policy requiring employees to have a high school diploma or, alternatively, to pass two aptitude tests in order to be hired for or transferred into any position other than labor.9 These requirements disproportionately prevented African-Americans from obtaining the betterpaying, more desirable positions.10 While finding that the employer's criteria was not intended to discriminate, the Court further held that good intent or absence of discriminatory intent does not redeem employment procedures . . . .n The Court found that neither of the employer's requirements could be to bear a demonstrable relationship to successful performance of the jobs for which [they were] used.12 The Court reasoned [T]he touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.13 The Court stated, Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance.14 The Griggs Court added that Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.15III. THE HISTORY OF DISPARATE IMPACT UNDER THE ADEAThe inclination of courts to find disparate-impact analysis applicable in ADEA cases dampened after the Supreme Court decided Hazen Paper Co. v. Biggins.16 In that case, the Court rejected the plaintiffs contention that his employer violated the ADEA by firing him in order to prevent him from vesting in his pension.17 It reasoned, When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is.18 The Court specified that it was not deciding the case on the plaintiffs disparate-impact claim, but only on a disparatetreatment theory. …