Does the disparate impact theory of liability apply to federal age discrimination claims?
Disparate impact claims arise from employment practices that are neutral on their face, but that nonetheless have a disproportionate negative impact on the employment opportunities of a protected class of individuals. Some thirty years ago, the Supreme Court held that disparate impact claims are permissible under Title VII. See Griggs v. Duke Power Co., 401 U.S. 424 (1971). Since then, lower federal courts have grappled (with widely divergent results) with the issue of whether such claims are likewise permissible under the Age Discrimination in Employment Act (“ADEA”). In Adams v. Florida Power Corp., both the district court and the Eleventh Circuit Court of Appeals concluded that plaintiffs were not permitted to bring disparate impact claims against their former employer under the ADEA. The Eleventh Circuit reasoned in part that the ADEA permits an employer to “take any action otherwise prohibited … where the differentiation is based on reasonable factors other than age.” 29 U.S.C. §
