practices adversely impacting employees or applicants on the basis of race advanced prior historical discrimination.
The same assumption does not hold true with respect to the ADEA and its protected class. At some point in each person's life, it is very likely that there will be a direct correlation between age and ability to perform. While it may be improper to base an employment decision on this correlation under the ADEA, the correlation is not the result of some past history of discrimination. In fact, employees currently covered under the ADEA may have even benefited from discrimination based on age at one time. In this regard, discrimination based on age can clearly be distinguished from other forms of discrimination. The essence of this distinction demonstrates why disparate impact liability is available under Title VII and not the ADEA. Indeed, "Congress itself recognized this distinction, for it provided in the ADEA that 'it shall not be unlawful for an employer . . . to take any action otherwise prohibited [by this section] where the differentiation is based on reasonable factors other than age . . . ." DiBiase, 48 F.3d at 734 (quoting 29 U.S.C. § 623(f)(1)).
The Supreme Court has also shed light on the unique nature of disparate impact liability under Title VII in Connecticut v. Teal, 457 U.S. 440, 73 L. Ed. 2d 130, 102 S. Ct. 2525 (1982). The Court noted that "[a] disparate-impact claim reflects . . . Congress' basic objective in enacting [Title VII]: 'to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees." Id. at 448 (emphasis in the original) (quoting Griggs, 401 U.S. at 429-30). In further describing disparate impact claims under Title VII, the Court continued: "when an employer uses a non-job-related barrier in order to deny a minority or woman applicant employment or promotion, and that barrier has a significant adverse effect on minorities or women, then the applicant has been deprived of an employment opportunity because of . . . race, color, religion, sex or national origin.'" Id. (emphasis in original) (quoting section 703(a)(2) of Title VII). The same concerns are simply non-existent in the context of the ADEA, as by statute, employers may rely on reasonable factors other than age in making employment decisions regardless of whether such factors are job-related.
Additional distinctions between discrimination based on age and other types of discrimination can be drawn from the nature of the protected classes covered by Title VII and the ADEA. The Supreme Court has refused to equate the degree of discrimination encountered by older workers with the level of discrimination faced by other protected classes. In Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976) (per curiam), the Court held that a state statute establishing a mandatory retirement age of fifty for police officers did not constitute discrimination against a suspect class for purposes of the equal protection clause under the Fourteenth Amendment. In reaching this conclusion, the Court added that the elderly, as a group, "have not experienced a 'history of purposeful unequal treatment' or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." Id. at 313. As one court has stated, "the Murgia Court . . . recognized that age is often a relevant indicator of job performance and is not a completely inapposite stereotype with no correlation to job performance." Hiatt v. Union Pac. R.R. Co., 859 F. Supp. 1416, 1436 (D. Wyo. 1994), aff'd, 65 F.3d 838 (10th Cir. 1995), cert. denied, 516 U.S. 1115, 116 S. Ct. 917, 133 L. Ed. 2d 847 (1996).
The very nature of the classes protected under the ADEA and Title VII and the distinctive forms of discrimination these groups have faced provide additional support for refusing to recognize the viability of disparate impact claims under the ADEA. While efforts to eliminate discrimination based on age should be encouraged, a facially neutral employment practice which may affect those over the age of forty to a greater statistical degree than younger workers simply does not constitute discrimination under the ADEA.
Finally, emerging case law supports this court's conclusion that a claim of discrimination based on a disparate impact theory is not cognizable under the ADEA. Although the Supreme Court did not decide the issue in Hazen Paper, the language of that opinion can be read as suggesting that the ADEA does not support a theory of disparate impact liability. Most courts thoroughly considering this issue in light of Hazen Paper have reached a similar conclusion, while those courts continuing to recognize disparate impact liability under the ADEA generally do so in reliance on pre-Hazen Paper precedent.
In sum, the text and legislative history of the ADEA, when read in conjunction with the policies underlying this statute and the Supreme Court's development of the disparate impact theory of liability in Griggs, demonstrate that claims of discrimination based on disparate impact are not cognizable under the ADEA. Accordingly, defendants' motion to dismiss such claims pursuant to Rule 12(b)(6) is GRANTED.
A separate Order shall issue this date.
Royce C. Lamberth
United States District Judge
For the reasons stated in the accompanying opinion, it is hereby
ORDERED that defendants' motion to dismiss plaintiffs' age discrimination claims based on a disparate impact theory of liability is hereby GRANTED.
Royce C. Lamberth
United States District Judge