Does disparate impact theory apply in age discrimination cases?
The Age Discrimination in Employment Act prohibits discrimination against any employee over the age of 40. Plaintiffs may base discrimination theories on either direct evidence or indirect proof that creates an inference of discrimination. There are two general types of inferential cases: an adverse treatment case (that generally compares a plaintiff to other similarly situated employees); and disparate impact claims (that, irrespective of an employer s motive, alleges a neutral policy has greater impact on a protected class). To this point, lower courts have been split on whether the ADEA recognizes disparate impact claims. In Smith v. City of Jackson, a case from the Fifth Circuit Court of Appeals, the plaintiffs sued for age discrimination claiming the Jackson, Mississippi police department s performance pay plan granted larger pay increases to employees under age 40. Under the plan, police officers and dispatches with five or fewer years of seniority received proportionately greate
