Smith v. City of Jackson MS

United States Court of Appeals

Fifth Circuit

F I L E D

Revised December 4, 2003 November 13, 2003

IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III

FOR THE FIFTH CIRCUIT Clerk

No. 02-60850

AZEL P SMITH; JACQUELINE BUTLER; RUTHIE PORTER; GLORIA

BURNS; WILLIE ALLEN; ET AL

Plaintiffs - Appellants

v.

CITY OF JACKSON, MISSISSIPPI; POLICE DEPARTMENT OF THE CITY

OF JACKSON, MISSISSIPPI

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Mississippi, Jackson

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit

Judges.

KING, Chief Judge:

Plaintiffs-appellants, thirty police officers and public

safety dispatchers employed by the defendants-appellees, the City

of Jackson and the Police Department of the City of Jackson, appeal

the district court’s order granting summary judgment in favor of

the defendants. The appeal presents an issue of first impression

in our circuit regarding whether a disparate impact theory of

liability is available to plaintiffs suing for age discrimination

under the Age Discrimination in Employment Act of 1967. The

district court ruled that, as a matter of law, claims of disparate

1

impact cannot be brought under the Act. We agree and therefore

affirm the judgment of the district court as to this issue.

However, because the district court granted summary judgment in

favor of the defendants on the plaintiffs’ disparate treatment

claim before addressing pending motions related to the plaintiffs’

ability to fully develop the summary judgment record, we vacate the

district court’s final judgment insofar as it dismissed the

plaintiffs’ disparate treatment claim.

I.

PROCEDURAL HISTORY

On May 14, 2001, thirty police officers and public safety

dispatchers – all over the age of forty and all employed by the

defendants – filed suit pursuant to the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. (2000). They

claimed injuries as a result of an allegedly age-discriminatory

performance pay plan (“the plan”) implemented by the defendants in

order to grant substantially larger salary increases to police

officers and public safety dispatchers (collectively “officers”)

under the age of forty. The plan was implemented by the defendants

on October 1, 1998, and revised by the defendants on March 1, 1999.

Under the plan, those officers and dispatchers with five or fewer

years of tenure with the department received proportionately

greater raises when compared to their former pay than those with

more than five years of tenure. As stated by the district court:

The plan accordingly created three categories for the

purposes of the analysis of this case: 1) those officers

2

and dispatchers with less than five years of tenure,

most, if not all, of whom would have been under 40 years

of age; 2) those 40 years of age or older, most, if not

all, of whom would have had more than five years of

tenure, and; 3) those under 40 years of age with more

than five years of tenure.

On December 11, 2001, the plaintiffs moved to compel certain

fiscal and personnel discovery related to the implementation and

revision of the plan; the magistrate judge overseeing disputes

related to discovery in this matter granted this motion on January

16, 2002, concluding that “the fiscal and personnel discovery

requested by the Plaintiffs is not privileged . . . and should be

produced.” On June 5, 2002, the plaintiffs filed a “motion for

sanctions, a default judgment, attorneys’ fees and expenses, expert

witness fees and a continuance,” seeking to have the defendants

comply with disclosure and discovery obligations as set forth in

the Federal Rules of Civil Procedure and the order of the

magistrate judge. Two days later, the defendants moved for summary

judgment, and the plaintiffs thereafter moved to strike certain

exhibits to the defendants’ motion, in part because the existence

of the documents attached as exhibits had been previously denied by

the defendants.

On September 6, 2002, while the plaintiffs’ motions were

pending, the district court granted summary judgment in favor of

the defendants on the plaintiffs’ disparate impact and disparate

treatment claims and denied the plaintiffs’ pending motions as

moot. Final judgment was entered on this same date.

The plaintiffs appeal this final judgment, maintaining that:

3

(1) the district court erred in concluding that a disparate impact

theory of liability is not cognizable under the ADEA, and (2) the

district court erred in improvidently dismissing the plaintiffs’

disparate treatment claim pending production by the defendants of

requested discovery materials.

II.

STANDARD OF REVIEW

We review the grant of summary judgment de novo, applying the

same standards as did the district court. Daniels v. City of

Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 534 U.S. 951

(2001). Summary judgment should be granted if there is no genuine

issue of material fact for trial and the moving party is entitled

to judgment as a matter of law. FED. R. CIV. P. 56(c). In

determining if there is a genuine issue of material fact, this

court reviews the evidence in the light most favorable to the non-

moving party. Daniels, 246 F.3d at 502.

III.

THE PLAINTIFFS’ DISPARATE IMPACT CLAIM

The plaintiffs raise both disparate treatment and disparate

impact theories of liability here. Regarding their disparate

treatment claim, the plaintiffs allege that the defendants were

motivated by age to implement a plan that discriminated against

them intentionally. Regarding their disparate impact theory, the

plaintiffs allege that the implementation of the facially neutral

plan by the defendants gives rise to liability without a showing of

intentional age motivation because the plan resulted in pay

4

increases to officers under forty years of age that were four

standard deviations higher than the raises received by officers

over forty. In support of their disparate impact theory, the

plaintiffs proffered to the district court statistical data

demonstrating that the average pay increases made pursuant to the

plan differed by age and that older officers received smaller

raises than their younger counterparts.

In a disparate treatment case, liability depends on whether

the protected trait – here, age – actually motivated the employer’s

decision. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).

The employer may have relied on a facially discriminatory policy

requiring adverse treatment of older employees or may have been

motivated by age to discriminate against an individual on an ad hoc

basis – “[w]hatever the employer’s decisionmaking process, a

disparate treatment claim cannot succeed unless the employee’s

protected trait actually played a role in that process and had a

determinative influence on the outcome.” Id. Proof of

discriminatory motive is thus critical to the success of a

plaintiff’s discriminatory treatment claim. Id. In contrast, in

a disparate impact case, liability may result without a

demonstration of discriminatory motive. Id. at 609. Disparate

impact claims arise from “employment practices that are facially

neutral in their treatment of different groups but that in fact

fall more harshly on one group than another and cannot be justified

by business necessity.” Id. (quoting Int’l Bhd. of Teamsters v.

United States, 431 U.S. 324, 335-36 n.15 (1977)).

5

In 1971, the Supreme Court held that plaintiffs may bring

disparate impact claims under Title VII. Griggs v. Duke Power Co.,

401 U.S. 424, 430-31 (1971). This judicial construction of the

statute was codified by Congress in 1991 to make clear that such a

theory was available to plaintiffs. See Civil Rights Act of 1991,

Pub. L. No. 102-166, § 105(a), 105 Stat. 1071, 1074-75 (adding 42

U.S.C. § 2000e-2(k)).1 The availability of a disparate impact

theory under the ADEA, however, is not so clear. In Hazen Paper

Co. v. Biggins, the Supreme Court expressly declined to weigh in on

whether the ADEA entitles a plaintiff to bring a disparate impact

cause of action, stating that “we have never decided whether a

disparate impact theory of liability is available under the ADEA,

and we need not do so here.” 507 U.S. at 610 (internal citation

omitted).

This express reservation has led to a debate amongst the

courts of appeals regarding whether the ADEA, like Title VII,

entitles a plaintiff to bring a disparate impact claim. Those

1

We note that the same statute did not make a parallel

amendment to the ADEA, although it did amend the ADEA in other

ways. Some of our sister circuits have concluded that this

omission (together with other factors) indicates a congressional

intent that a disparate impact cause of action not be available

under the ADEA. See Mullin v. Raytheon Co., 164 F.3d 696, 703

(1st Cir. 1999); Ellis v. United Airlines, Inc., 73 F.3d 999,

1008 (10th Cir. 1996). Such congressional inaction is

susceptible of multiple interpretations, however, and so we

should hesitate before we draw inferences from it. See

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306 (1988). The

Civil Rights Act of 1991 was mainly aimed at overriding certain

interpretations of Title VII, and so we do not find it especially

probative with respect to the question before us today.

Accordingly, our interpretation of the ADEA, set forth later in

this opinion, rests on other grounds.

6

courts of appeals extending the holding in Griggs to the ADEA do so

based on the textual similarities between the prohibitory sections

of the ADEA and Title VII. See Frank v. United Airlines, Inc., 216

F.3d 845, 856 (9th Cir. 2000) (stating, post-Hazen, that “[w]e see

no reason to depart from our conclusion . . . and we again hold

that a disparate impact claim is cognizable under the ADEA”);

Criley v. Delta Air Lines Inc., 119 F.3d 102, 105 (2d Cir. 1997)

(following, without discussion, pre-Hazen law in stating that “in

our circuit, we have recognized such a[] [disparate impact]

action”); Smith v. City of Des Moines, 99 F.3d 1466, 1470 (8th Cir.

1996) (stating that “even if we believed that Hazen Paper cast

doubt on the validity of [pre-Hazen case law], Houghton [a post-

Hazen case] represents the law of this Circuit” and must therefore

be followed). Those courts of appeals declining to hold that a

disparate impact theory is cognizable under the ADEA recognize the

significant textual overlap in the prohibitory sections of the ADEA

and Title VII, but they also look beyond this similarity, examining

the entire ADEA statute (and the purpose behind its enactment) and

finding important differences between the ADEA and Title VII that

counsel against extending the Griggs holding to the ADEA context.

See Adams v. Fla. Power Corp., 255 F.3d 1322, 1325-26 (11th Cir.)

(holding that disparate impact claims may not be brought under the

ADEA, in part because “the history of the ADEA differs from the

legislative history of Title VII, which the Supreme Court in Griggs

relied on to find a cause of action for disparate impact”), cert.

granted, 534 U.S. 1054 (2001), cert. dismissed, 535 U.S. 228

7

(2002); Mullin, 164 F.3d at 703 (“Congress never intended to make

a disparate impact cause of action available under the ADEA.”);

Maier v. Lucent Tech., Inc., 120 F.3d 730, 735 (7th Cir. 1997)

(“[S]uch a theory of liability [disparate impact] is not cognizable

under the ADEA.”); Ellis, 73 F.3d at 1001 (“[W]e hold that ADEA

claims cannot be based on a disparate impact theory of

discrimination.”).2

After surveying the well-traversed arguments on either side of

this debate, we hold that the ADEA was not intended to remedy age-

disparate effects that arise from the application of employment

plans or practices that are not based on age. Fundamental to our

decision is the ADEA’s express exception permitting employer

conduct based on “reasonable factors other than age” – an exception

absent from Title VII – and the inapplicability to the ADEA context

of the policy justifications identified by the Supreme Court (in

Griggs, 401 U.S. at 430-31) for recognizing a disparate impact

cause of action in the Title VII context.

A. Similarities Between the ADEA and Title VII

2

After Hazen, the Third and the Sixth Circuits have both

expressed “considerable doubt” regarding whether a claim of age

discrimination may be stated under a disparate impact theory.

Lyon v. Ohio Educ. Ass’n & Prof’l Staff Union, 53 F.3d 135, 139

n.5 (6th Cir. 1995) (“The Court’s focus in Hazen Paper on

Congress’s intent to prevent discrimination based on inaccurate

and damaging stereotypes suggests that incidental discriminatory

effects arising from facially age-neutral policies are not

redressable.”); DiBiase v. SmithKline Beecham Corp., 48 F.3d 719,

732 (3d Cir. 1995) (opinion of Greenberg, J.) (stating that “the

analysis in Hazen casts considerable doubt on the viability of

the theory”). However, in neither case was the issue directly

before the court.

8

The construction of a statute begins with the text of the

statute itself. The ADEA prohibits discrimination on the basis of

age. See 29 U.S.C. § 623 (2000). It was enacted in 1967, before

the Supreme Court first interpreted Title VII to allow employees to

prove discrimination by showing disparate impact. See Griggs, 401

U.S. at 431. The plaintiffs correctly identify the core sections

expressly prohibiting discrimination “because of [an] individual’s

age” in the ADEA – § 623(a)(1) and (a)(2) – as overlapping almost

identically with the core sections expressly prohibiting

discrimination “because of [an] individual’s race, color, religion,

sex, or national origin” in Title VII – 42 U.S.C. § 2000e-2(a)(1)

and (2).3 This is no coincidence; “the prohibitions of the ADEA

3

Section 623’s prohibitory subsections provide, in

relevant part, that it is unlawful for an employer:

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s age;

(2) to limit, segregate, or classify his employees

in any way which would deprive or tend to deprive any

individual of employment opportunities or otherwise

adversely affect his status as an employee, because of

such individual’s age . . . .

29 U.S.C. § 623(a)(1)-(2). The prohibitory subsections of Title

VII provide, in relevant part, that it is unlawful for an

employer:

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national

origin; or

(2) to limit, segregate, or classify his employees

or applicants for employment in any way which would

9

were derived in haec verba from Title VII.” Lorillard v. Pons, 434

U.S. 575, 584 (1978). The only differences in the prohibitory

language contained in these statutes are: (1) Title VII protects

against discrimination on the basis of “race, color, religion, sex,

or national origin,” while the ADEA protects against discrimination

on the basis of “age”; and (2) Title VII extends protection also to

“applicants” for employment, while the ADEA does not.

Although the ADEA’s prohibitory provisions are at first blush

read most naturally as outlawing only conduct motivated by age –

the statute refers to actions taken “because of” age – Griggs of

course held that parallel language in Title VII prohibited actions

that had a race-disparate impact, irrespective of motive or intent.

The significant overlap between the prohibitory sections of the

ADEA and of Title VII persuaded the Second Circuit to hold early

on, with little discussion, that a disparate impact theory of

liability is likewise available under the ADEA. See Geller v.

Markham, 635 F.2d 1027, 1031-32 (2d Cir. 1980).4 The Eighth and

Ninth Circuits soon followed suit, again without any significant

deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as

an employee, because of such individual’s race, color,

religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(1)-(2).

4

Then-Justice Rehnquist dissented from the denial of

certiorari in Geller. 451 U.S. 945 (1981). In so doing, he

stated that “[i]n my opinion, the decision of the Court of

Appeals is inconsistent with the express provisions of the ADEA

and is not supported by any prior decision of this Court.” Id.

at 947.

10

inquiry apart from drawing a parallel to Title VII. See Leftwich

v. Harris-Stowe State Coll., 702 F.2d 686, 690 (8th Cir. 1983);

Douglas v. Anderson, 656 F.2d 528, 531 n.1 (9th Cir. 1981).5 As

noted earlier, these circuits continue to follow that position.6

While the First, Seventh, Tenth, and Eleventh Circuits have

likewise approached the statutory construction of the ADEA by

looking at the text of the ADEA, they have (we think correctly)

declined to limit their construction calculus solely to the

prohibitory sections of the ADEA and Title VII. Instead, as we

explore below, they look to the entire statute and legislative

history of the ADEA to recognize important textual and policy-based

differences between the ADEA and Title VII that demonstrate an

intention on the part of Congress to allow for claims of

5

At around the same time, the EEOC issued new

interpretive guidelines for the conduct of ADEA cases. We note

that one portion of those guidelines seems to be based on the

assumption that the Griggs framework applies to ADEA cases. See

46 Fed. Reg. 47,724, 47,725 (1981) (Sept. 29, 1981) (amending 29

C.F.R. § 1625.7(d)). Such guidelines are not entitled to Chevron

deference. Christensen v. Harris County, 529 U.S. 576, 587

(2000); EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 256-58 (1991).

We are of course still bound to treat them as having persuasive

force, to the extent that they are thoughtfully considered. See

Christensen, 529 U.S. at 587. The guideline in question does not

purport to affirmatively establish that a disparate impact theory

is available. Instead, it simply assumes, on the basis of

Griggs, that such a theory is available. See 46 Fed. Reg. at

47,725. Given the absence of significant analysis, and in light

of subsequent developments that have cast doubt on that

assumption, we do not believe that this administrative guidance

is convincing authority.

6

The Seventh Circuit, which had originally permitted

disparate impact suits under the ADEA, changed course after

Hazen. See EEOC v. Francis W. Parker Sch., 41 F.3d 1073 (7th

Cir. 1994).

11

intentional age discrimination, but not for claims of disparate

impact discrimination.

B. Differences Between the ADEA and Title VII

(1) Section 623(f)(1) of the ADEA

The ADEA’s prohibitions against age discrimination in

employment are qualified by several exceptions to employer

liability set forth in § 623(f). Pursuant to one of these

exceptions, an employer can avoid liability under the ADEA if the

adverse employment action is “based on reasonable factors other

than age.” 29 U.S.C. § 623(f)(1).7

Neither the “reasonable factors other than age” exception nor

a parallel provision is found in Title VII. Facially, the

exception appears to serve as a safe harbor for employers who can

demonstrate that they based their employment action on a reasonable

non-age factor, even if the decision leads to an age-disparate

result. In a pre-Hazen dissenting opinion, Judge Easterbrook

argues against recognizing a disparate impact theory of liability

under the ADEA based on this “reasonable factors other than age”

7

Section 623(f)(1) provides, in relevant part:

It shall not be unlawful for an employer,

employment agency, or labor organization –

(1) to take any action otherwise prohibited under

subsections (a), (b), (c), or (e) of this section where

age is a bona fide occupational qualification reasonably

necessary to the normal operation of the particular

business, or where the differentiation is based on

reasonable factors other than age . . . .

29 U.S.C. § 623(f)(1).

12

exception:

[Section (f)(1)], which says that “reasonable factors

other than age” may be the basis of decision – impl[ies]

strongly that the employer may use a ground of decision

that is not age, even if it varies with age. What else

could be the purpose of this language? Surely it does

not mean simply that “only age discrimination is age

discrimination.” “The prohibition and the exception

appear identical. The sentence is incomprehensible

unless the prohibition forbids disparate treatment and

the exception authorizes disparate impact.”

Metz v. Transit Mix, Inc., 828 F.2d 1202, 1220 (7th Cir. 1987)

(Easterbrook, J., dissenting) (quoting Douglas Laycock, Continuing

Violations, Disparate Impact in Compensation, and Other Title VII

Issues, 49 L. & CONTEMP. PROBS. 53, 55 (1986)). Post-Hazen case law

likewise reads the inclusion of the “reasonable factors other than

age” exception to imply a congressional intent to remedy only

intentional discrimination because of age through the passage of

the ADEA. For example, the First Circuit states:

A critical asymmetry in the texts of the ADEA and Title

VII counsels convincingly against recognizing a disparate

impact cause of action under the former statute . . . .

This [“reasonable factors other than age”] proviso

permits employers to utilize factors other than age as

grounds for employment-related decisions that

differentially impact members of the protected class

(individuals between the ages of 40 and 69). When this

exception is read with the ADEA’s general prohibition

against age-based discrimination, the resulting

construction follows: it shall be unlawful to

“discriminate against any individual . . . because of

such individual’s age,” except when “based on . . .

factors other than age.” Thus, if the exception

contained in section 623(f)(1) is not understood to

preclude disparate impact liability, it becomes nothing

more than a bromide to the effect that “only age

discrimination is age discrimination.”

13

Mullin, 164 F.3d at 701-02. We too find that the inclusion of the

“reasonable factors other than age” exception to the ADEA creates

a critical “asymmetry” between the ADEA and Title VII.8 The

addition of this broad exception to the ADEA, on its face, appears

to preclude a disparate impact theory of liability under the ADEA;

at a minimum, it amounts to a salient textual difference between

the substantive liability provisions of the ADEA and Title VII – a

difference not mentioned by any of the courts of appeals which have

extended Griggs to the ADEA context.9

While we believe that the “reasonable factors other than age”

provision counsels against recognizing a disparate impact theory

8

In his dissent from the denial of certiorari in Geller,

then-Justice Rehnquist likewise focused on § 623(f)(1) to support

his view that Congress did not intend that a disparate impact

claim be cognizable under the ADEA:

In my view, Congress did not intend the ADEA to have the

restraining influence on local governments which will

result from the decision below. Congress revealed this

intention in 29 U.S.C. § 623(f)(1), which provides that

it shall not be unlawful for an employer to take any

action otherwise prohibited “where the differentiation is

based on reasonable factors other than age.”

Geller, 451 U.S. at 948-49 (Rehnquist, J., dissenting from denial

of cert.).

9

This difference between the statutes also means that

the rule of in pari materia, heavily relied upon by our colleague

in dissent, is largely inapplicable to this case. For while we

usually endeavor to give like language the same meaning, it is a

cardinal rule of statutory interpretation that we are to consider

the whole act, reading each section in light of the others.

E.g., United Sav. Ass’n of Tex. v. Timbers of Inwood Forest

Assocs., 484 U.S. 365, 371 (1988) (“Statutory construction,

however, is a holistic endeavor. A provision that may seem

ambiguous in isolation is often clarified by the remainder of the

statutory scheme . . . .”).

14

under the ADEA, we would not go so far as to say that it rules out

any alternative reading. As the dissent argues, the prohibitory

section and the “reasonable factors other than age” clause could

together be read as announcing a general rule that disparate impact

is actionable but then carving out a defense for adverse impacts

that can be justified as a business necessity. The dissent’s

position is, of course, essentially how the courts have treated

claims under Title VII. We do not believe this course is open to

us, however. This circuit long ago held that § 623(f)(1)’s

“reasonable factors other than age” provision does not create an

affirmative defense to liability; rather, it allows the defendant

to bring forward evidence to negate the plaintiff’s prima facie

case. See Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 590-

91 (5th Cir. 1978). Furthermore, whether or not § 623(f)(1) is

technically treated as a defense, we do not think that the

reference to “reasonable factors other than age” can be taken to

mean that all practices having a disparate impact are illegal

unless they meet the stringent requirements of “business

necessity.” Indeed, the Supreme Court has suggested a different

meaning for the clause, stating that it “insure[s] that employers

[are] permitted to use neutral criteria not directly dependent on

age.” EEOC v. Wyoming, 460 U.S. 226, 232-33 (1983) (emphasis

added); cf. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88 (2000)

(“The exception simply makes clear that ‘[t]he employer cannot rely

on age as a proxy for an employee’s remaining characteristics, such

as productivity, but must instead focus on those factors

15

directly.’” (quoting Hazen, 507 U.S. at 611)). Therefore, we would

not read the “reasonable factors other than age” clause as a

limited derogation from a general prohibition against disparate

impact. Instead, we believe that the soundest reading of the whole

text is that the ADEA does not prohibit employers from taking

actions based on non-age factors, except when those non-age factors

are so related to age that they are mere proxies.10 This reading

of the text is also powerfully supported by the legislative

history, to which we turn in Part III.B.2 of our opinion.

The conclusion that this “reasonable factors other than age”

exception textually precludes a disparate impact theory of

liability under the ADEA is arguably strengthened by the Supreme

Court’s treatment of a similar exception to the Equal Pay Act.

The Equal Pay Act was originally enacted in 1963 (as an amendment

to the Fair Labor Standards Act) to prohibit discrimination in

wages based on gender. Corning Glass Works v. Brennan, 417 U.S.

188, 195 (1974). Under subsection (d), entitled “Prohibition of

sex discrimination,” in Title 29, section 206, the Equal Pay Act

contains an exception similar to the “reasonable factors other than

age” exception found in the ADEA:

No employer having employees subject to any

provisions of this section shall discriminate, within any

establishment in which such employees are employed,

10

In order to resolve this case, we need not speculate on

what such factors might be. The Supreme Court held in Hazen that

adverse employment actions based on job tenure do not, without

more, amount to disparate treatment based on age. 507 U.S. at

611-12.

16

between employees on the basis of sex . . . except where

such payment is made pursuant to (i) a seniority system;

(ii) a merit system; (iii) a system which measures

earnings by quantity or quality of production; or (iv) a

differential based on any other factor other than sex:

Provided, That an employer who is paying a wage rate

differential in violation of this subsection shall not,

in order to comply with the provisions of this

subsection, reduce the wage rate of any employee.

29 U.S.C. § 206(d)(1) (emphasis added). The Supreme Court has

interpreted this exception to preclude actions based on disparate

impact theories under the Equal Pay Act. See County of Washington

v. Gunther, 452 U.S. 161, 169-71 (1981); Los Angeles Dep’t of Water

& Power v. Manhart, 435 U.S. 702, 710 (1978). For example, in

Manhart, a class action was brought on behalf of female employees

of the Los Angeles Department of Water and Power challenging the

Department’s requirement that female employees make larger

contributions to its pension fund than male employees. 435 U.S. at

704. The requirement was based on a study of mortality tables

which revealed that, on the average, the Department’s female

employees lived a few years longer than its male employees. Id. at

705. In footnote 20, Justice Stevens, writing for the Court,

interpreted the “any factor other than sex” exception to the Equal

Pay Act:

A variation on the Department’s fairness theme is the

suggestion that a gender-neutral pension plan would

itself violate Title VII because of its

disproportionately heavy impact on male employees. Cf.

Griggs v. Duke Power Co., 401 U.S. 424. This suggestion

has no force in the sex discrimination context because

each retiree’s total pension benefits are ultimately

determined by his actual life span; any differential in

benefits paid to men and women in the aggregate is thus

17

“based on [a] factor other than sex,” and consequently

immune from challenge under the Equal Pay Act . . . .

Id. at 710 n.20 (alteration in original).

The Court’s willingness to find that the Equal Pay Act’s “any

factor other than sex” exception precludes disparate impact

theories of liability under the Equal Pay Act is helpful to our

statutory construction of the ADEA. Many provisions in the ADEA

have their roots in the Fair Labor Standards Act and the Equal Pay

Act. See, e.g., Lorillard, 434 U.S. at 577-82 (discussing the Fair

Labor Standards Act as the “model” for the enforcement and remedial

provisions to the ADEA). Although legislative history on

§ 623(f)(1) is slim, we find it likely that the ADEA’s “reasonable

factors other than age” exception was spawned from the Equal Pay

Act’s “any factor other than sex” exception, especially given that

no parallel exception is found in Title VII.11

We recognize that the exceptions found in the ADEA and the

Equal Pay Act are not identical. The most notable difference,

emphasized by our colleague in dissent, is the inclusion of the

11

See Mack A. Player, Wards Cove Packing or Not Wards

Cove Packing? That Is Not the Question: Some Thoughts on Impact

Analysis Under the Age Discrimination in Employment Act, 31 U.

RICH. L. REV. 819, 833-34 (1997) (“Note the similarity of the

Equal Pay Act and ADEA ‘factor other than . . .’ defenses. Guess

the origins . . . . Until the mid-1970s the Secretary of Labor

administered and enforced the Equal Pay Act. The Secretary of

Labor was charged by Congress . . . to prepare a report on age

discrimination and recommend legislation to Congress. The

initial drafts of what eventually became the ADEA were thus

prepared by the Secretary of Labor . . . . It would seem,

therefore, that the Secretary who was then enforcing the Equal

Pay Act, lifted language and concept from the Equal Pay Act and

placed it in the ADEA.”).

18

word “reasonable” in the ADEA’s exception. However, we, like the

Eleventh Circuit in Adams, decline to infer from the inclusion of

the word “reasonable” that Congress meant to create an implicit

background rule that actions resulting in an age-disparate impact

are as a general matter proscribed. See 255 F.3d at 1325 n.6. As

we explained above, we believe the better reading is not that the

clause acts as a limited defense against disparate impact claims

but rather that the clause signals that impacts resulting from

neutral criteria not directly dependent on age are not prohibited

in the first place. At the very least, we recognize the

“reasonable factors other than age” exception as a clear textual

difference between the ADEA and Title VII regarding employer

liability – a distinction that, if nothing else, plainly

contradicts the argument that the cognizability of a disparate

impact claim under Title VII (as set forth in Griggs) controls the

cognizability of a disparate impact claim under the ADEA.12

12

Before turning to the legislative history of the ADEA,

we note that we do not share the dissent’s view of the import of

the Older Workers Benefit Protection Act, Pub. L. No. 101-433,

104 Stat. 978 (1990) (“OWBPA”). The OWBPA added a provision to

the ADEA requiring employers in certain circumstances to provide

laid off employees with data relating to the ages of employees

who are laid off versus those who retain their jobs. See 29

U.S.C. § 626(f). According to the dissent, such statistics would

have little use if the ADEA did not allow a disparate impact

cause of action. We would not draw that inference, however, for

such statistical evidence is quite useful in disparate treatment

cases. See Teamsters, 431 U.S. at 339; McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 805 (1973); Anderson v. Douglas & Lomason

Co., 26 F.3d 1277, 1285 (5th Cir. 1994). Moreover, the

legislative history of the OWBPA shows that Congress believed

that such statistics would help to alert discharged employees to

the possibility that they might have suffered disparate treatment

based on age. See H.R. REP. NO. 101-664, at 22 (1990) (expressing

19

(2) Legislative History and Policy Considerations

In addition to the § 623(f)(1) exception to the ADEA, strong

policy considerations, revealed in the legislative history of the

ADEA, underscore the differences between the ADEA and Title VII.

Because the broad remedial purpose behind Title VII was central to

the Court’s statutory construction of Title VII in Griggs, the

difference between the purposes behind the ADEA and Title VII is

directly relevant to whether a disparate impact theory is

cognizable under the ADEA.

Congress enacted the ADEA after receiving a 1965 report by the

Secretary of Labor regarding the problems of older workers. See

EEOC v. Wyoming, 460 U.S. at 230-31. For our purposes, it is

significant that the Secretary’s report finds “no evidence of

prejudice based on dislike or intolerance of the older worker” and

concludes that the main problem older workers faced in the

workplace was arbitrary age discrimination — namely explicit age

limitations — based on misconceptions about the abilities of older

workers. U.S. DEP’T OF LABOR, THE OLDER AMERICAN WORKER: AGE DISCRIMINATION

IN EMPLOYMENT 2, 6 (1965) (the “Report”), reprinted in EEOC, LEGISLATIVE

HISTORY OF THE AGE DISCRIMINATION IN EMPLOYMENT ACT 16 (1981) (hereinafter

LEGISLATIVE HISTORY). The Report further specifically finds that the

concept of age prejudice is unique and differs from the concept of

the concern that in large-scale layoffs, “an individual employee

would not reasonably be expected to know or suspect that age may

have played a role in the employer’s decision, or that the

program may be designed to remove older workers from the labor

force”).

20

race prejudice because the process of aging “is inescapable,

affecting everyone who lives long enough,” regardless of distinct

social and economic environments. Id. at 6. The Report likewise

distinguishes between “arbitrary discrimination” based on age and

other institutional arrangements that have a disproportionate

effect on older workers, finding that different solutions were

appropriate for these different problems. Id. at 21-25; see also

Mullin, 164 F.3d at 703 (describing the Report as “recommend[ing]

that arbitrary discrimination be statutorily prohibited, but that

systemic disadvantages incidentally afflicting older workers be

addressed through educational programs and institutional

restructuring”).13 These findings were “confirmed throughout the

extensive factfinding undertaken by the Executive Branch and

Congress” in conjunction with the enactment of the ADEA. EEOC v.

Wyoming, 460 U.S. at 230-01.

On January 23, 1967, the Secretary transmitted to Congress

13

We recognize that the Report found that discriminatory

practices were often “defended on grounds apparently different

from their actual explanation.” Report at 7. We disagree,

however, with the dissent’s conclusion that Congress therefore

must have intended to create a cause of action for disparate

impact. The practices to which the Report was referring were age

limitations, a form of disparate treatment. See id. Age

limitations were, in fact, the dominant form of arbitrary

discrimination addressed in the Report. Such restrictions are

“arbitrary,” according to the Report, in that they are based on

stereotype-driven assumptions about older workers rather than on

older workers’ actual abilities. Id. at 2, 8. When an

employer’s practices are motivated by neutral, non-age factors,

however, “the problem of inaccurate and stigmatizing stereotypes

disappears.” Hazen, 507 U.S. at 611. The mischief identified in

the Report is therefore more accurately targeted by a disparate

treatment theory, not a disparate impact theory.

21

proposed legislation entitled “Age Discrimination in Employment Act

of 1967.” Letter from W. Willard Wirtz to Hon. John W. McCormack

and Hon. Hubert H. Humphrey, Jan. 23, 1967, reprinted in LEGISLATIVE

HISTORY at 62-63. In this letter, the Secretary notes that the bill

“provides for attention to be given to institutional arrangements

which work to the disadvantage of older workers,” but that

“[r]easonable differentiations not based solely on age . . . would

not fall within the proscription” of the bill. Id. Instead, the

Secretary recommended that “research . . . be undertaken and

promoted with a view to reducing barriers to the employment of

older workers.” Id. at 63. The Report, this proposed bill, and

subsequent factfinding by the Executive Branch and Congress led

Congress to limit the purpose of the ADEA specifically “to

prohibit[ing] arbitrary age discrimination in employment.” 29

U.S.C. § 621(b).

In contrast to the refined purpose evidenced in the historical

underpinnings of the ADEA’s enactment, the Supreme Court’s opinion

in Griggs discusses Title VII’s broad remedial purpose. The

defendant company in Griggs instituted a policy of permitting

incumbent employees who lacked a high school education to qualify

for transfer from the labor and coal handling department to an

“inside” department by passing two tests of general intelligence –

“[n]either [of which] was directed or intended to measure the

ability to learn to perform a particular job or category of jobs.”

401 U.S. at 427-28. Prior to the effective date of Title VII, the

defendant had instituted a policy of “restricting Negroes” to the

22

labor and coal handling department in 1965. Id. at 427.

Chief Justice Burger, writing for the Court, held that

Congress’s objective in enacting Title VII was 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 429-30. Based on this objective, the

Court held that “practices, procedures, or tests neutral on their

face, and even neutral in terms of intent, cannot be maintained if

they operate to ‘freeze’ the status quo of prior discriminatory

employment practices.” Id. at 430.

The cornerstone of Griggs’s holding that disparate impact is

cognizable under Title VII is thus the link between the history of

educational discrimination on the basis of race and the use of that

discrimination to continue to disadvantage individuals on the basis

of their race. Id. at 432 (stating that “good intent or absence of

discriminatory intent does not redeem employment procedures or

testing mechanisms that operate as ‘built-in headwinds’ for

minority groups and are unrelated to measuring job capability”);

see also Gunther, 452 U.S. at 178 (describing the “broad approach”

of Title VII as aimed at “overcoming and undoing the effect of

discrimination”) (internal quotation marks omitted). However,

absent from the scope of the ADEA are the historical and remedial

concerns that, in the Title VII context, led to the recognition of

disparate impact claims directed at overcoming the consequences of

past societal discrimination.

As Justice Stevens explained in his concurring opinion in

23

Washington v. Davis, 426 U.S. 229 (1976), it is “inappropriate

simply to transplant . . . standards in their entirety into a

different statutory scheme having a different history.” Id. at 255

(Stevens, J., concurring). We heed this advice today and therefore

follow the majority of circuit courts to have addressed this issue

in holding that a disparate impact theory of liability is not

cognizable under the ADEA. We find insufficient textual support

for the recognition of a disparate impact theory of liability in

the ADEA. Further, as we see it, the conclusion that the holding

in Griggs should be extended to the ADEA context based on the

similarities in the prohibitory sections of the ADEA and Title VII

ignores important considerations. It ignores the existence of

§ 623(f)(1) – an express exclusion of employer liability that is

present in the ADEA but not present in parallel form in Title VII

– and it ignores the differing purposes behind the ADEA and Title

VII.14

14

Although it was not essential to the Court’s holding in

Hazen Paper Co., there is language in the opinion that supports

our conclusion that a disparate impact claim is not cognizable

under the ADEA. There, a discharged employee (who was 62)

brought suit against his employers after they discharged him only

a few weeks before his pension rights were to vest, contending

that the employers’ decision was motivated by his age. 507 U.S.

at 606. The First Circuit affirmed the judgment for the

plaintiff employee, entered by the district court consistent with

the jury verdict in favor of the employee. Id. at 607. In so

doing, the court of appeals gave “considerable emphasis” to the

evidence of pension interference because, in the court of

appeals’s view, the jury could reasonably have found that age was

inextricably intertwined with the decision to fire the employee

before his pension rights vested. Id. The Supreme Court vacated

this judgment. Id. at 617. Importantly, the employee did not

base his claim for relief on a disparate impact theory of

liability. Id. at 610. Nonetheless, in holding that “an

24

IV.

THE PLAINTIFFS’ DISPARATE TREATMENT CLAIM

In contrast to the plaintiffs’ disparate impact claim, the

plaintiffs’ disparate treatment claim is cognizable under the ADEA.

A. McDonnell Douglas Framework

We have interpreted the now-familiar McDonnell Douglas

framework to apply to disparate treatment claims brought under the

ADEA. Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 395 (5th Cir.

2002). To make out a prima facie case of discriminatory treatment

based on age, the plaintiffs are required to prove: (1) they are

within the protected class; (2) they are qualified for the

position; (3) they suffered an adverse employment decision; and

(4) they were replaced by someone younger or treated less favorably

than similarly situated younger employees (i.e., suffered from

disparate treatment because of membership in the protected class).

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.

2002); see also Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir.

2002).

employer does not violate the ADEA just by interfering with an

older employee’s pension benefits that would have vested by

virtue of the employee’s years of service,” id. at 613, the Court

stated that “[d]isparate treatment . . . captures the essence of

what Congress sought to prohibit in the ADEA.” Id. at 610.

Further, the Court specifically discussed the decided purpose of

the ADEA — i.e., to prevent “arbitrary” discrimination based on

inaccurate stereotyping regarding older workers: “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.” Id. at 611

(emphasis omitted).

25

If the plaintiffs make out their prima facie case, then the

burden of production shifts to the defendants to articulate a

legitimate, nondiscriminatory reason for the adverse employment

action. Tyler, 304 F.3d at 395. If the defendants meet this

burden of production, the inference of discrimination drops, and

the plaintiffs may then attempt to prove discrimination by offering

evidence that the defendants’ stated reason is pretextual. Id.

(“In a disparate treatment case . . . a plaintiff must produce

sufficient evidence to rebut a showing by the employer that there

was a legitimate, non-discriminatory reason for [differentially

treating] a particular employee.”).

Here, the district court dismissed the plaintiffs’ disparate

treatment claim because the plaintiffs could not make out their

prima facie case based on the evidence available to them at the

time their responsive briefing was filed. The district court cited

this evidence as consisting of: (1) evidence that the Personnel

Director for the City of Jackson, Dr. George Terry, represented

that the plan considered tenure only once; and (2) evidence that

certain officers were subjected to age-related comments by Dr.

Terry, Officer Deric Hearn, and Deputy Chief Cleon Butler. The

district court additionally held that the plaintiffs’ evidence, as

a matter of law, was insufficient to disprove the defendants’

legitimate nondiscriminatory reasons for their employment decision

– to bring starting salaries for police officers up to the regional

average, to develop a more generous pay scale within the confines

of the city budget, and to consider tenure in the pay scale.

26

B. The Plaintiffs’ Pending Motions

When the district court dismissed the plaintiffs’ disparate

treatment claim, two motions were pending: (1) a “motion for

sanctions, a default judgment, attorneys’ fees and expenses, expert

witness fees and a continuance,” filed by the plaintiffs on June 5,

2002; and (2) a “motion to strike exhibits to defendants’ motion

for summary judgment,” filed by the plaintiffs on July 11, 2002.

The June 5, 2002, motion sought comparative wage data relating

to the plan, as originally implemented in October 1998 and as

revised in March 1999. It also sought to compel disclosure of any

related fiscal and personnel discovery in accordance with the order

of the magistrate judge granting the plaintiffs’ motion to compel.

Finally, the motion sought a continuance of the discovery period in

order to allow the defendants to produce discovery materials

previously requested and to allow the plaintiffs an opportunity to

further develop their case based on this new evidence.

The July 11, 2002, motion sought to strike certain exhibits

from the defendants’ motion for summary judgment, in part because

as to certain of these data produced as exhibits, “[t]he counsel

for the Defendants [had] insisted that no such wage data existed,”

and “these data’s purported existence and importance were never

provided to the Plaintiffs until it was utilized by an Expert for

the Defense.”

Curiously, the district court did not rule on these motions.

Instead, in deciding to grant the defendants’ motion for summary

judgment, the district court simply considered the evidence

27

available to the plaintiffs at the time of their responsive

briefing. After granting summary judgment in favor of the

defendants as to the plaintiffs’ disparate treatment claim, the

court then disposed of the plaintiffs’ pending motions by stating

that “[b]ecause the Court finds that Plaintiffs cannot meet their

burden of proof for claims of disparate treatment under the ADEA,

the other motions of Plaintiffs in opposition to the Motion of

Defendant for Summary Judgment related to claims for disparate

treatment are moot.”

On appeal, the plaintiffs contend that the dismissal of their

disparate treatment claim was premature because they “were not

allowed to enforce their requests for discovery or to complete

scheduled depositions that had been recessed when the plaintiffs

learned that significant information had been willfully withheld

from them.”

C. Analysis of the District Court’s Conclusions

The district court may have conflated the plaintiffs’ burdens

of production and persuasion in concluding that the plaintiffs

failed to meet their burden of demonstrating a genuine fact issue

regarding their disparate treatment claim.15 However, we need not

15

For example, although not ultimately relevant to our

determination on appeal, the district court required that the

plaintiffs prove, as part of their initial prima facie burden,

“unlawful motive” to discriminate because of age instead of

requiring that the plaintiffs demonstrate replacement by someone

younger or differential treatment of younger, similarly situated

officers. See Sandstad, 309 F.3d at 897. The district court

also appears to have used pre-Reeves case law in discussing the

plaintiffs’ ultimate burden of proving unlawful discrimination

under the ADEA. See, e.g., Ross v. Univ. of Tex. at San Antonio,

28

address this issue because, upon review, we agree with the

plaintiffs that summary judgment on the plaintiffs’ disparate

treatment claim was premature in light of the plaintiffs’ pending

motions before the district court, particularly given the

allegation included in these motions that the defendants have

failed to comply with the order of the magistrate judge.

The magistrate judge clearly ordered the defendants to turn

over various discovery documents, including documents that were

responsive to the plaintiffs’ initial disclosure request. These

documents apparently include the working papers used by city

officials in drafting the new and revised plans, as well as

evidence regarding comparative wage data – including memoranda and

other documentation related to the March 1, 1999, City of Jackson

Pay Plan Revision, signed by all pertinent department heads, the

existence of which was initially denied by the defendants. The

plaintiffs allege that this evidence provides additional

documentation verifying the extent of the disparity between wage

increases for officers under the age of forty and officers over the

age of forty. The plaintiffs also allege that this evidence

139 F.3d 521, 525 (5th Cir. 1998). As the Supreme Court stated

in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148

(2000), “a plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is

false, may permit the trier of fact to conclude that the employer

unlawfully discriminated.” Further, the district court here

apparently declined, without discussion, to consider any of the

plaintiffs’ evidence that the plan resulted in a disparity of

four standard deviations between workers over forty and workers

under forty. Such statistical evidence can be relevant to a

claim of intentional discrimination. See supra note 12.

29

provides them with documentation regarding the defendants’

knowledge that, at least at the time the defendants revised the

plan, the plan would result in inferior pay status for older

workers when compared to younger workers. This evidence appears to

us to be relevant to the plaintiffs’ prima facie case and to their

ultimate burden required to counter the defendants’ proffered

reasons for implementing the pay plan.8 While much of this

evidence relates primarily to the plaintiffs’ now-dismissed

disparate impact claim, the impact evidence may also support a

permissible inference of intentional discrimination and, as the

plaintiffs argue, may relate to whether one of the defendants’

proffered justifications – to bring salaries up to the regional

average – is false.

We do not decide whether the defendants have, in fact, failed

to comply with the magistrate judge’s order, whether the motion to

continue discovery should be granted, or whether the plaintiffs’

other pending motions have merit. Rather, we simply hold that the

district court should have addressed these motions before it ruled,

on an apparently incomplete summary judgment record, that the

plaintiffs had not met their burden of demonstrating the existence

of genuine fact issues regarding their disparate treatment claim.

If the defendants did not comply with their discovery obligations

8

Our ability to determine the degree to which this

requested evidence will ultimately benefit the plaintiffs is made

difficult by the absence in the record of the parties’ briefs in

support of and against the defendants’ motion for summary

judgment and the failure of the plaintiffs to request that these

briefs be supplemented to the record on appeal.

30

such that the plaintiffs were prohibited from presenting their best

case to the district court, summary judgment in favor of the

defendants improperly denied the plaintiffs an opportunity to

continue discovery and supplement the record. Sunbelt Sav., FSB v.

Montross, 923 F.2d 353, 357, 358 (5th Cir. 1991) (holding that

summary judgment was premature when discovery was still pending).

The history of the discovery disputes plaguing this case and

the existence of pending motions alleging that the plaintiffs’

ability to present their best case was significantly hindered by

the defendants’ failure to comply with their discovery obligations

convinces us that the summary judgment dismissal of the plaintiffs’

disparate treatment claim was premature. On remand, the district

court may want to take into account, in ruling on the pending

motions, our decision on the viability of the disparate impact

claim.

V.

CONCLUSION

We AFFIRM in part, VACATE in part, and REMAND the case to the

district court. Costs shall be borne by appellees.

31

CARL E. STEWART, Circuit Judge, concurring in part, dissenting in

part:

While I agree with the majority’s disposition of plaintiff’s

disparate treatment claim in Part IV of the opinion, I also believe

that the district court erred in improvidently dismissing the

plaintiff’s disparate impact claim and, therefore, I must dissent

with regard to Part III.

This marks the first time our court has had to squarely

decide, in the aftermath of Hazen Paper v. Biggins, 507 U.S. 604

(1993), whether a disparate impact claim may be formulated under

the ADEA. I, however, am not thoroughly convinced by the

majority’s attempt to distinguish between two statutes–the ADEA and

Title VII–whose text is virtually the same, that Congress meant to

imply a disparate impact claim to the latter, but to preclude such

a claim in the former. Equally, I am not persuaded by the

majority’s emphasis on the “reasonable factors other than age”

(“RFOA”) exception. When Congress enacted the ADEA in 1967, the

courts had yet to develop a disparate impact theory. Thus, at the

time of enactment, it appears that Congress most likely intended

the RFOA to apply solely to claims of disparate treatment. Based

upon a close reading of the text, the relevant legislative history,

subsequent legislative actions, and concerns of public policy, I

submit that a proper interpretation of the ADEA allows a disparate

impact cause of action.

I. STATUTORY INTERPRETATION OF THE ADEA

The majority’s analysis begins with the premise that the RFOA

exception of the ADEA facially appears as a safe harbor to

employers. To the majority, the language of the RFOA exception

clearly rejects the theory of disparate impact. The majority

relies in part on a pre-Hazen dissent by Judge Easterbrook in Metz

v.Transit Mix, Inc., for the proposition that the RFOA exception is

“incomprehensible unless the prohibition forbids disparate

treatment and the exception authorizes disparate impact.” 828 F.2d

1202, 1220 (7th Cir. 1987) (emphasis added).

Contrary to the majority’s conclusion, it is not at all clear

from the text that the RFOA exception has no alternative

interpretation other than to preclude disparate impact. The RFOA

exception aside, the language of the ADEA and Title VII are similar

in every other respect. Thus, I cannot conclude, in the absence of

expressed language to the contrary, that Congress meant to apply

the disparate impact theory to Title VII, but not to the analogous

language of the ADEA. Until the United States Supreme Court

expressly rules on this issue, I continue to believe that the

majority viewpoint is in error. Despite the obvious similarities

between Title VII and the ADEA, today’s majority joins our fellow

33

courts of the First,9 Third,10 Sixth,11 Seventh,12 Tenth,13 and

Eleventh14 Circuits in disclaiming a disparate impact theory under

the ADEA.

As shown through persuasive precedent from other circuits,

however, there is another side to this debate. For example, while

acknowledging that post-Hazen the availability of disparate impact

claims under the ADEA is unsettled among the circuits, the Second

Circuit held that it “generally assesses claims brought under the

ADEA identically to those brought pursuant to Title VII, including

disparate impact.” Smith v. Xerox, 196 F.3d 358, 367 n.5 (2d Cir.

1999). The Second Circuit is not alone. The Eighth Circuit has

also stated that it “continues to recognize the viability of . . .

[ADEA disparate impact] claims.” Lewis v. Aerospace Cmty. Credit

Union, 114 F.3d 745, 750 (8th Cir.1997); See also EEOC v. McDonnell

Douglass Corp., 191 F.3d 948, 950 (8th Cir. 1999) (stating that

“the law of this circuit is that disparate impact claims are

9

Mullin v. Raytheon Co., 164 F.3d 696, 703-04 (1st Cir.

1999) cert. denied, 528 U.S. 811, 120 S. Ct. 44, 145 L. Ed. 2d 40

(1999).

10

DiBiase v. Smithkline Beecham Corp., 48 F.3d 719, 732 (3d

Cir. 1995).

11

Lyon v. Ohio Educ. Ass’n and Prof’l Staff Union, 53 F.3d

135, 139 n.5 (6th Cir. 1995).

12

EEOC v. Francis W. Parker School, 41 F.3d 1073, 1076-77

(7th Cir. 1994).

13

Ellis v. United Airlines, Inc., 73 F.3d 999, 1006-07

(10th Cir. 1996).

14

Adams v. Fla. Power Corp., 255 F.3d 1322, 1325 (11th Cir.

2001).

34

cognizable under the ADEA”). Thus, precedent from other circuits

show that a contrary facial interpretation of the RFOA is

reasonable.

Moreover, the strongest argument against the language of the

RFOA exception precluding disparate impact lies in the substantive

provisions of the ADEA and Title VII. In a similar case, a

concurrence by Eleventh Circuit Judge Barkett acutely noted:

[I]n every statutory discrimination case, a decision

based upon legitimate business necessity will never

support a claim for liability. Griggs itself recognized

and repeatedly emphasized that disparate impact is a

basis for relief only if the practice in question is not

founded on “business necessity,” or lacks “a manifest

relationship to the employment.” [401 U.S. 424, 430-31

(1971)]. [The RFOA exception] of the ADEA adds nothing

new.

. . . In light of the parallels between the substantive

provisions of the ADEA and Title VII, and in light of the

fact that Congress has amended the ADEA several times but has

never explicitly excluded disparate impact claims, a

reasonable interpretation of the [RFOA exception] is that

it codifies the business necessity exception to disparate

impact claims.

Adams, 255 F.3d at 1327-28 (Barkett, J., concurring).

35

I find Judge Barkett’s reasoning fully persuasive. Under a theory

of disparate impact, employers will still be able to have

employment practices and policies that may burden over-age workers

in a disproportionate way. These practices will be permissible,

despite the disproportionate impact, provided the employer shows

they are supported by a business necessity. Upon proving business

necessity, the burden shifts to the employee to show that the

practice in question was established not because of the legitimacy

of the necessity, but merely as a pretext for invidious

stereotyping. Therefore, I am not persuaded that adopting a

disparate impact theory will lead to any inconsistencies with the

RFOA exception.

That said, the cornerstone of the majority’s holding relies on

an analogous provision in the Equal Pay Act (“EPA”). Because the

RFOA exception does not exist under Title VII, the majority looks

instead to the EPA, which precludes disparate impact claims via its

“any factor other than sex” language. The majority attempts to

show that the similarities between the RFOA and EPA “any factor”

exception should be construed by courts to demonstrate that the

RFOA should similarly prohibit disparate impact. See Washington v.

Gunther, 452 U.S. 161, 170 (1981) (juxtaposing the EPA’s “any

factor other than sex” language with Title VII’s broadly inclusive

prohibition against gender discrimination and stating that the

language “confine[d] the application of the Act to wage

differentials attributable to sex discrimination.”).

36

The flaw in the majority’s logic is that the terms “any” and

“reasonable” are not synonymous. Under the ADEA, an employer with

a disparate impact policy may be liable for age discrimination if

factors relied on were not reasonable. Pursuant to the EPA,

however, if an employment policy causes wage differences among men

and women workers, the employer will not be liable unless the

policy in question was based solely on gender. Thus, the ADEA and

EPA exceptions cannot be read to have the same meaning unless the

word “reasonable” is omitted from the RFOA exception. In this

light, the premise of the majority opinion appears little more than

ironic in that when it compares statutory language of the ADEA and

Title VII to preclude disparate impact, the court advocates a

dissimilar reading of almost identical statutes. Yet, when

comparing the ADEA to the EPA, with the intent of precluding

disparate impact, the majority applies a similar reading of

exceptions which differ significantly. I disagree with the

majority’s analytical approach and its reading of Gunther as

indicating that the ADEA cannot bar some “reasonable factors other

than age” practices which have a disparate impact on workers over

forty.

Additionally, the majority’s contention that the ADEA and

Title VII are not similar statutes, insofar as their application of

the disparate impact theory, disregards the doctrine of in pari

materia. It has long been held that judicial interpretations of

one statute may be informed by interpretations of similar statutes.

Lorillard v. Pons, 434 U.S. 575, 580-81 (1978) (“[When] Congress

37

adopts a new law incorporating sections of a prior law, Congress

normally can be presumed to have had knowledge of the

interpretation given to the incorporated law, at least insofar as

it affects the new statute.”). Under this well established

statutory canon, “the interpretation of one statute may be

influenced by language of other statutes which are not specifically

related, but which apply to similar persons, things, or

relationships.” Nat. Fed’n of Fed. Employees v. Dep’t. of

Interior, 119 S. Ct. 1003, 1013 (1999) (defining the doctrine of in

pari materia, citing several cases where the Court applied this

doctrine to aid in its construction of a variety of statutes, and

arguing that the doctrine was now “well established”) on remand,

174 F.3d 393 (4th Cir. 1999).

In the context of the ADEA and Title VII, adhering to this

canon is particularly well suited because, as the majority

concedes, the ADEA grew out of debates on Title VII. Furthermore,

in pari materia has relevance because both aforementioned statutes

apply to similar persons (here, the employees) and similar

relationships (here, the employment context). Moreover, Congress

carefully chose identical language for its statutes dealing with

both discrimination against older workers and discrimination

against those due to race or gender. Therefore, the majority

should have applied the doctrine of in pari materia and interpreted

the disparate impact theory as applicable to the ADEA.

II. THE ADEA LEGISLATIVE HISTORY

38

My second point of disagreement with the majority concerns its

portrayal of the legislative history of the ADEA. The majority

opinion subtly recognizes that the legislative history of the ADEA

is not directly on point. Although the majority’s opinion properly

recognizes that the Supreme Court’s 1971 endorsement of the

disparate impact theory in Griggs, 401 U.S. at 430-31, was later in

time than Congress’s enactment of the ADEA in 1967, the majority

attempts to support its position by focusing on the underlying

purposes of the legislation.

Although the language of Title VII and the ADEA are almost

identical, the majority essentially dismisses Griggs as irrelevant

to the calculus of age discrimination. The majority distinguishes

Griggs from the ADEA on the grounds that Griggs interpreted

Congress’s intent underlying Title VII as sweeping in nature. The

majority argues, “[i]n contrast to the refined purpose evidenced in

the historical underpinnings to the ADEA’s enactment, the Supreme

Court’s opinion in Griggs discusses Title VII’s broad remedial

purpose.” While it is undoubtably true that Griggs recognized

disparate impact theory as an available tool in the employment

discrimination toolbox to remedy past discrimination under Title

VII, it does not necessarily follow, as the majority asserts, that

the disparate impact tool is available only in a remedial context.

I disagree in two respects with the majority’s holding that

disparate impact theory should be limited to the context of Title

VII. First, the textual similarity between Title VII and the ADEA

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evinces a congressional intent to provide similar protection

against employment discrimination under the two statutes. Second,

it is arguable whether historical discrimination should be a

necessary precondition for recognizing a disparate impact theory.

I acknowledge, as the majority does, that the ADEA and Title VII

are distinct because the former lacks a history tied to past

discrimination. In the absence of a clear statement to the

contrary, however, I cannot assume that Congress intended to limit

the remedial measures available under anti-discrimination statutes

with almost identical language merely because the statutes arose

out of distinct historical contexts. The Supreme Court in Griggs,

for example, did not posit historical discrimination as the sole

reason for disparate impact under Title VII; Griggs merely held

that a showing of disparate impact was available to remedy this

type of discrimination. See Jennifer J. Clemons and Richard A.

Bales, ADEA Disparate Impact in the Sixth Circuit, 27 Ohio N.U. L.

Rev. 1, 23 (2000). Moreover, the majority’s emphasis on the

historical posture of the ADEA and Title VII unduly minimizes the

statutes shared aim of ridding from the workplace an environment of

concealed discrimination. Griggs, 401 U.S. at 431 (stating that

Title VII “proscribes not only overt discrimination but also

practices that are fair in form, but discriminatory in operation”);

EEOC v. Wyoming, 460 U.S. 226, 231 (1983) (stating that the ADEA

seeks to remedy “arbitrary” forms of age discrimination “based in

large part on stereotypes unsupported by objective facts, and often

defended on grounds different from its actual causes”). Consistent

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with such an aim, a disparate impact theory may be a plaintiff’s

only tool in counteracting sophisticated discrimination.

Therefore, due to the similarity of the ADEA and Title VII

language, it is my view that the protection available under both

statutes, including that from disparate impact, should also be

similar.

The majority ignores the fact that Griggs does not stand alone

as the only relevant decision applying disparate impact theory.

Under Supreme Court precedent, the disparate impact theory has

grown beyond its original purpose of alleviating racial

discrimination claims. See Dothard v. Rawlinson, 433 U.S. 321,

329-32 (1977) (applying disparate impact theory to Title VII sex

discrimination claims). Furthermore, under the 1991 Civil Rights

Act, 42 U.S.C. § 2000-e2(k)(1)(A)(I) (1994), disparate impact

claims are readily available not only to plaintiffs alleging racial

discrimination, but also to those claiming discrimination on the

basis of gender, national origin, and religion.15 In light of these

15

Title VII of the Civil Rights Act of 1964, as

amended by the Civil Rights Act of 1991, provides in

pertinent part:

Sec. 703. (k)(1)(A) An unlawful employment

practice based on disparate impact is

established under this subchapter only if–

(i) a complaining party demonstrates that a

respondent uses a particular employment

practice that causes a disparate impact on the

basis of race, color, religion, sex, or

national origin and the respondent fails

to demonstrate that the challenged practice is

job related for the position in question and

consistent with business necessity;

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developments, I cannot agree with the majority that the ADEA must

be limited solely to disparate treatment claims.

I also do not agree with the majority’s interpretation of the

most prominent documentation of all ADEA legislative history, the

Wirtz Report.16 The majority uses the Report to bolster its

argument that the ADEA was not premised on eradicating past

discrimination. The flaw with the majority’s use of this most

critical evidence of congressional intent is its failure to

acknowledge the argument, embodied within the Wirtz Report, that

age discrimination was in fact “based in large part on stereotypes

unsupported by objective fact, and was often defended on grounds

different from its actual cause.” See EEOC , 460 U.S. at 231.

The aforementioned conclusion seems to indicate that the ADEA’s

purpose may not have been limited to eradicating animus, as the

majority suggests. Rather, and in contrast to the majority’s view,

the Wirtz Report indicates that Congress merely intended to utilize

the ADEA to eliminate stereotypes that workers’ productivity

. . . .

42 U.S.C. § 2000e-2 (2003).

16

The term “Wirtz Report” refers to a congressional report

commissioned by the former Department of Labor Secretary W.

Willard Wirtz which, pursuant to section 715 of Title VII,

instructed the Secretary of Labor to conduct a study with

recommendations for “legislation to prevent arbitrary

discrimination in employment because of age.” The origins of

the ADEA’s rationales and objectives can be traced to the

resulting report entitled, The Older American Worker: Age

Discrimination in Employment (1965). See also EEOC, 460

U.S. at 229-31 (tracing legislative history of the ADEA and

central role of the Secretary of Labor Report).

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declines with age. That said, I acknowledge that the Wirtz Report

is supportive evidence of Congress’s intent concerning the ADEA and

that the Report did in fact distinguish age discrimination as

“rarely based on the sort of animus motivating some other forms of

discrimination.” My position merely suggests that because the

Wirtz Report sheds the best light on Congress’s intent in enacting

the ADEA, a point the majority does not refute, this Report

arguably provides more support for affirming, rather than denying,

that the ADEA contains a disparate impact cause of action.

Furthermore, the legislative intent indicating that Congress

meant to allow the disparate impact theory in ADEA actions may be

discerned from a Congressional amendment. In 1994, Congress

amended the ADEA by adding the Older Workers Benefit Protection Act

(“OWBPA”). 29 U.S.C. § § 623, 626, 630(f) (1994). The statute

requires an employer to provide the employee with information

regarding the ages of workers offered severance pay and those who

were not let go before the employee waives any potential

discrimination claims. 29 U.S.C. § 626(f)(1)(E)-(G), (H)(ii)

(1994). These statistics, comparing the ages of those terminated

and those retained, would be of little relevance if the employee

could not bring a disparate impact claim. Therefore, the addition

of the OWBPA is additional evidence that the disparate impact

theory should be available under the ADEA.

III. CONCLUSION

The majority today fails to heed the Griggs recognition that

in a complex society, not all discrimination is apparent or overt.

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Often, such discrimination will be subtle and concealed. The

practical consequence of the majority’s decision is that it will

allow an employer to exclude older workers from lower-level jobs

simply on the basis of pretext, without an additional tool at the

employee’s disposal to counteract such sophisticated discriminatory

acts. Contrary to the majority’s stance, I agree with the Supreme

Court’s determination in Hazen that the disparate impact liability

was designed to detect employment decisions that reflect

“inaccurate and stigmatizing stereotypes.” 507 U.S. at 610. Thus,

I find no incompatibility with using disparate impact theory to

prove liability under the ADEA.

Instead, I am concerned that by not allowing a disparate

impact cause of action under the ADEA, the majority has essentially

held such plaintiffs to the heightened evidentiary standard of

Washington v. Davis, 426 U.S. 229 (1976), where sophisticated and

concealed discrimination must be proved solely through intentional

acts. The majority, however, fails to fully absorb the spirit of

Justice Stevens’s concurrence in Davis that “the line between

purpose and discriminatory impact is not nearly as bright, and

perhaps not quite as critical, as the reader of the court’s opinion

may assume.” Id. at 254. Applied to our context, Justice

Stevens’s concurrence demonstrates that the majority’s opinion,

which distinguishes between intentional discrimination based on

disparate treatment on the one hand and a disparate impact cause of

action absent proof of intent on the other, may not be as clear as

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the majority seems to opine. Therefore, with regards to Part III

of the majority opinion, I respectfully dissent.

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