Amicus Curiae Brief — Adams v. Florida Power Corp.
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WANDA ADAMS, LEO L. FLOYD, et al,
Petitioners,
Vv.
FLORIDA POWER CORPORATION and
FLORIDA PROGRESS CORPORATION,
Respondents.
On Writ of Certiorari To The
United States Court of Appeals
For the Eleventh Circuit
BRIEF AMICI CURIAE OF AARP,
AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS
(AAUP), AMERICAN JEWISH CONGRESS, NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE (NAACP), NATIONAL COUNCIL OF LA RAZA,
NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES
AND THE NATIONAL WOMEN’S LAW CENTER
IN SUPPORT OF PETITIONERS
LAURIE A. MCCANN
Counsel of Record
DANIEL B. KOHRMAN
THOMAS W. OSBORNE
AARP FOUNDATION LITIGATION
MELVIN RADOWITZ
AARP
601 E Street, NW
Washington, DC 20049
(202) 434-2060
Counsel for Amici Curiae
i
TABLE OF CONTENTS
TABLE OF CONTENTS
INTERESTS OF AMICI CURIAE
SUMMARY OF ARGUMENT
I. THE COURT HAS CONSTRUED
LANGUAGE IN TITLE VII THAT IS
VIRTUALLY IDENTICAL TO THAT IN
THE ADEA AS THE SOURCE OF THE
DISPARATE IMPACT THEORY
A. Since the ADEA and Title VII Share
Common Purposes and Identical
Substantive Provisions, They
Should be Interpreted Similarly
. The ADEA’s Prohibition of Decisions
“Because of Such Individual’s Age”
Condemns Unintentional As Well
As Intentional Age Discrimination
. The Civil Rights Act of 1991 Did Not
Affect the Viability of Disparate Impact
THE ADEA’S LEGISLATIVE HISTORY
DEMONSTRATES CONGRESS’ INTENT
TO REDRESS ALL FORMS OF
“ARBITRARY” AGE BIAS INCLUDING
NEUTRAL POLICIES AND PRACTICES
WITH A DISPARATE IMPACT ON
A. The ADEA’s History Demonstrates
Congress’ Intent to Ban All “Arbitrary”
Age Discrimination, Including Age-Neutral
Policies and Practices that Fall More
Harshly on Older Workers and Do Not Meet
Genuine Employer Needs ..............-.- 10
1. The Wirtz Report Identified Neutral
Employment Standards as a Form of
Arbitary Discrimination ................-- 12
2. Regulations and Advisory Opinions Reaffirm
That Age-Neutral, Non-Job-Related Policies
and Practices With Adverse Impacts on
Older Workers May Violate the ADEA ...... 14
B. The Eleventh Circuit Erred in Concluding that
the Legislative History of the ADEA
Precludes Reliance on the Disparate
Impact Approach to Proving Age
Il THE COURT HAS RECOGNIZED THAT
DISPARATE IMPACT IS MORE EFFECTIVE
THAN DISPARATE TREATMENT IN
POLICING WHAT THE COURT CONSIDERS
TO BE THE “ESSENCE” OF AGE
ERE osc cndececedSecek eens 20
A. Stereotyping Is Often Unintentional ......... 23
© for oi the Most Effective Tool
for sheen ion Based on
Sééledhay oyedseees Wons baueas 25
COGAN. 6 ncn iv'nns datccduuctsehasubenes 29
ee
TABLE OF AUTHORITIES
CASES Pages
Adams v. Florida Power Corp.,
255 F.3d 1322 (1ith Cir. 2001) .............. passim
Albermarle v. Moody,
cade ecddnesacehdoooecees 25, 30
Alexander v. Choate,
ede cca secesebecesoees 20
Arnold v. U.S. Postal Serv.,
SEED BUD cccccccccccccccccces 5
Bissette v. Colonial Mortgage Corp.,
SPF ee BP a GE BOUED cicccccccccccccccs 20
Brecht v. Abrahamson,
ee Cee Cee k ec ceeseeetecoee ss )
Camacho v. Sears Roebuck,
PR EES BED ccccccccccocccccces 9
Chevron USA v. Natural Resources Defense Council,
EE 16
Connecticut v. Teal,
ince ee nestcecascoececes 4, 26
DiBiase v. SmithKline Beecham or.
48 F.3d 719 (3d) cert. denied, 516 U.S. 916 (1995) ... 28
Dilla v. West,
4F. Sap. 28 1130 (MLD. Ala. 1998), aff'd per curiam,
cE Ee 22
Dothard v. Rawlinson,
EEE EES 28
iv
EEOC v. Francis W. Parker School,
41 F.3d 1073 (7th Cir. 1994), cert. denied,
ES TS 21, 23, 26
EEOC v. Governor Mifflin Sch. Dist.,
623 F. Supp. 734 (D.C. Pa. 1985) ................0. 5
EEOC v. Wyoming,
460 U.S. 226 (1983) -husbipenéebdbavedes 10, 11, 21
Ellis v. United Airlines, Inc.
73 F.3d 999 (10th Cir.)
cert. denied, 517 U.S. 1245 (1996) ....... 6, 7, 8, 19, 21
FDA v. Brown & Williamson Tobacco Co.,
— . & RRR eer 16
General Electric Co. v. Gilbert,
RRR eee, er 4
Girouard v. United States,
DP idnncsccutabensbnohedbowes an 4
Greenwood Trust Co. v. Commonwealth of Mass.,
971 F.2d 818 (1st Cir. 1992),
cert. denied, 506 U.S. 1052 (1993) .............045. 5
Griggs v. Duke Power Co.,
Tr ree 4, 11, 19, 26, 30
Hazen Paper Co. v. Biggins,
Pee SONNE SeSbé0écccccdccses 10, 20, 21, 22
Ingersoll-Rand v. McClendon,
Ps EES cobocccaveccebedccnctstosuds 5
In re: Employment Discrimination Litigation
ainst the State of Alabama,
Pee SUS URSEEE EUEED sececewctccscccves 25
Vv
INS v. St. Cyr,
, 5 rey Ser ere ree 16
International Board of Teamsters v. United States,
Ps ncadecodciodsénesosendecevens 25
Johnson v. Combs,
SORE SOUND kes cccccesccctccescces 6
Johnson v. Santa Clara Transp. Agency,
nn cccnsbeweneneéédacesedacns 9
Lorillard v. Pons,
IE ins eine caudebeueivencends 5
McKennon v. Nashville Banner Pub. Co.,
Kk Se 2, 6, 29, 30
Morales v. Trans World Airlines, Inc.,
KE eee 5
Mullin v. Raytheon, Co.,
164 F.3d 696 (1st Cir.) cert. denied,
EE pel ca dedcekechaeseencéoc 6, 21
NLRB v. Plasterers’ Local Union No 79,
SEED gtcncuuéteurcessvcdesecsccece 9
Northcross v. M is Bd. of Educ.,
SERED saddécdebetonscossescececss 5,6
O'Connor v. Consolidated Coin Caterers Corp.,
Pt Pn <4 .csbechuheseseonseeseuses 2
Oscar Mayer & Co. v. Evans,
ED -cctnncwceedtceeccceueessed 5, 6
Oubre v. Entergy Operations, Inc.,
ED cna ntdnédeacoceoscoseeseees 2
Price Waterhouse v. H.
opkins,
GP PEED, Gdecccescccoccenccecccess
Reeves v. Sanderson Plumbing Prods. Inc.,
SUD SPE Sade resdccccocccccccccess
Samuels v. Dist. of Columbia,
650 F. Supp. 482 (D.D.C. 1986) ................
Schneidewind v. ANR Pipeline Co.,
GPO ENTEED ce escnsscoccvccccessesees
Wards Cove Packing Co. v. Atonio,
SPEED Socctccceccusessceccceses
Watson v. Fort Worth Bank & Trust,
Se SET EEE Sancociccesincécoccespece
STATUTES AND LEGISLATIVE HISTORY
Age Discrimination in Employment Act (ADEA),
- SSSSSS™
Q
14% Act of 1991,
g
-
:
8
&
eB
~”
=
3
3
Title VII of the Civil Rights Act of 1964,
Ge Gs BD wo cc cccdssdcvccosceses
Age Discrimination in Employment, 1967: .
Hearings on S. 830 & S: 788 Before the Subcomm.
On Labor of the Senate Comm. On Labor and
Pub. Welfare, 90th Cong. (1967) ...............
vil
ee nen eg Le,
Before the Subcomm. on Retirement Income and
House Select Comm. on Aging,
GE SUE GOED eeccccccccccccccccesce 17
Reorg. Plan No. 1 of 1978, 92 Stat. 3781,
43 Fed. Reg. 19807 (May 9, 1979) ................ 16 —
U.S. Dep’t of Labor, The Older Worker:
Age Discrimination in Employment, Report of the
of Labor Under Section 715 of the
Civil Rights Act of 1964 (1965) ............... passim
REGULATIONS AND ADVISORY OPINIONS
EE echt ih06eceSeeu set eeedeousbse 16
EE, hg a vcuceccvetdasddcocossese 16
PED sv occccpsestceccecececcese 15
ED So ceocccdcedtcctecesceese 15
EE nosdeecedveeseecdéacendeces 16
EE oc do ndnécabatccdecceseece 14
Charles T. Lindquist, Administrator, Wage and Hour
and Public Contracts Divisions, U.S. Dep’t of Labor,
ADEA Opinion Letter (August 1, 1968) ............ 17
Ben P. Robertson, Deputy Administrator, Wage and Hour
and Public Contracts Divisions, U.S. Dep’t. of Labor,
ADEA Opinion Letter (October 9, 1968) ........... 17
MISCELLANEOUS
Roberta Sue Alexander, “Comment: The Future of
Disparate Analysis for Age Discrimination in a
Post-Hazen World,” 25 DAYTON L. REV. 75 (1999) .. 27
Bruce J. Avolio & Gerald V. Barrett, “Effects of
Stereotyping in a Simulated Interview,”
2 CHOLOGY AND AGING, March 1987 ........... 28
Marc Bendick, Jr., Lauren E. Brown, & Kennington Wall,
“No Foot in the Door: An Experimental Study
of oyment Discrimination Against
Older Workers,” 10(4) JOURNAL OF AGING
nn de vi ncaueccaeecees 28
Marc Bendick, Jr., Charles W. Jackson, & J. Horacio Romero,
Pay ere a en Discrimination Against Older Workers:
An Experimental Study of Hiring Practices,” 8
(4) JOURNAL OF AGING & SOCIAL POLICY 25 (1996) .. 28
Robert N. Butler, Rye Ageism: The Cross-Cutting
Intervention,” 503 ANNALS 138 (1989) ........ 29
Robert N. Butler, WHY SURVIVE?:
BEING OLD IN AMERICA (1975) ...........045- 23, 24
Howard Eglit, “The Discrimination in Employment
Act’s Forgotten ive Defense,” 66 BOSTON
Fe TTT TTT TTT TTT ee 24
Keith R. Fentonmiller, “Continuing Validity of
Raymond F. Gregory, AGE DISCRIMINATION IN THE
AMERICAN WORKPLACE: OLD AT A YOUNG
PEED cn bdbbb ov ceeeksussseeedeiacescaeces 27
Stan Hinden, Forced to Retire Before You're Ready
The Merge-and-Downsize Era’s Layoffs Hit Older
Workers Especially Hard,
WE SE BOE “nc cceponidedevcccences 29
Steven J. Kamenshine, “The Cost of Older Workers,
Disparate Impact, and the Age Discrimination in
loyment Act,
42 PLA. L. REV. 229 (1990) ............. 21, 22, 23, 26
ix
Charles R. Lawrence, Ill, “Ego, and Equal Protection:
Reck With Unconscious Racism,”
RRR 25, 27
J. Levin and W.C. Levin,
AGEISM: PREJUDICE AND DISCRIMINATION AGAINST
is on dade ce wecceal ce 27, 28
William C. Levin, “Age Stereotyping,”
10(1) RESEARCH ON AGING 134 (March ar 28
Becca R. Levy, “Eradication of Ageism Requires
Addressing the Enemy Within, 41
THE GERONTOLOGIST 578 (Oct. 2001) ....... 24, 25, 26
Robert Manor & T. Shawn Taylor, Age-Bias Complaints
Up Sharply Older Workers’ Higher Salaries are
Big Targets for Employers,
Chicago Tri ME ¢censeueectionceess 29
David Benjamin imer, “Negligent Discrimination,”
141 U. PENN L. CO TTT Te 27
Erdman B. Palmore, Ageism:
Negative and Positive (1999) .................... 25
Charles W. Perdue & Michael B. Gurtman,
“Evidence for the Automaticity of Ageism,”
26 JOURNAL OF EXPERIMENTAL SOCIAL
EY CE wee kunchbotonececess 25, 26
Deborah L. Rhode, “The ‘No-Problem’ Problem:
Feminist Challenges and Cultural Change,”
i Ce oc kecvesenedescoesens 25
x
Benson Rosen & Thomas H. Jerdee, “The Nature of
Job-Related Age S
59 JOURNAL OF APPLIED PSYCHOLOGY 511 (1976) ... 28
Benson Rosen & Thomas H. Jerdee, “Influence of
Age Stereotypes on Managerial Decisions,”
61 JOURNAL OF APPLIED PSYCHOLOGY 428 (1976) ... 28
No. 01-584
IN THE
Supreme Court of the United States
WANDA ADAMS, LEO L. FLOYD, et al.,
Petitioners,
v.
FLORIDA POWER CORPORATION and,
FLORIDA PROGRESS CORPORATION
Respondents.
On Writ of Certiorari To The
United States Court of Appeals
For the Eleventh Circuit
BRIEF AMICI CURIAE OF AARP
AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS
(AAUP), AMERICAN JEWISH CONGRESS, NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE (NAACP), NATIONAL COUNCIL OF LA RAZA,
NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES,
AND THE NATIONAL WOMEN’S LAW CENTER
IN SUPPORT OF PETITIONERS
INTEREST OF AMICI CURIAE”
AARP is a nonprofit membership organization of more than
35 million people age 50 or older dedicated to addressing the
needs and interests of older Americans. One of AARP’s
Y The consents of the parties have been filed with the Clerk of the Court.
Pursuant to Supreme Court Rule 37.6, Amici Curiae state that no counsel
for any party authored this brief in whole or in part and that no party or
entity other than amici curiae, its members, or counsel made a monetary
contribution to the preparation or submission of this brief.
2
primary objectives is to achieve dignity and equality in the
work place through positive attitudes, practices, and policies
regarding work and retirement. Through its research,
publications, and training programs, AARP seeks to eliminate
ageist stereotypes and their arbitrary discriminatory effects,
encourage employers to hire and to retain older workers, and
help older workers overcome the obstacles they encounter
because of age. AARP supports the rights of older workers and
the public policies designed to protect those rights and strives
to preserve the legal means to enforce them.
This case is of utmost importance to AARP’s members.
More than 40 percent of AARP’s members remain active in the
work force. Most ——— by the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621-633. The
vigorous enforcement of the ADEA is of paramount importance
for the millions of older workers who rely on the Act to deter
and remedy invidious age bias in the work place. Since 1985,
as part of its advocacy efforts, AARP has more than 200
amicus curiae briefs in this Court and in the federal district and
appellate courts regarding the proper interpretation and
application of the ADEA. In this Court, AARP has participated
as amicus curiae in, among others, the cases «f Reeves v.
Sanderson Plumbing Prods. Inc., 530 U.S. 133 (' 300); Oubre
v. Entergy Operations, Inc., 522 U.S. 422 (1998), O’Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308 (1996); and
McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995).
This brief is also submitted on behalf of the American
Association of University Professors (AAUP), the American
Jewish Congress, the National Council of La Raza, the National
Association For the Advancement of Colored People
(NAACP), the National Partnership for Women & Families,
and the National Women’s Law Center, all of which support
the rights of older workers to be free from employment
discrimination, whether on grounds of race, gender, national
origin, religion, or age. The statements of interest of these
amici are included in the appendix to this brief.
Denying the disparate impact method of proving age
discrimination to its victims will thwart the intent of Congress,
insulate from challenge discriminating conduct which Congress
has deemed devastating to individuals, society, and the national
economy, and undermine the core civil rights principle that
workers should be judged based on their abilities rather than
characteristics unrelated to their participation in the work force,
such as age. Since the uences of discrimination are
equally devastating regardless of the employer’s motivation or
the status of the victim, older workers must be
afforded the same rights and avenues for redress as those
enjoyed by victims of other forms of employment
discrimination.
Amici urge the Court to reject suggestions that age
discrimination in the work place is so fundamentally different
from other forms of employment discrimination that it can be
adequately addressed by the disparate treatment theory alone.
Holding that the ADEA encompasses both disparate treatment
and disparate impact claims would be in complete harmony
with the ADEA’s congressional purpose as well as its
legislative roots.
For these reasons, Amici Curiae respectfully submit this
brief in support of the Petitioners.
SUMMARY OF ARGUMENT
In order to fully implement the will of Congress expressed
in the ADEA, older workers must have the right to pursue both
disparate treatment and impact claims. While the
court below concluded that Congress limited ADEA claimants
to the disparate treatment theory of proof, there is no persuasive
evidence of such limits in either the text or legislative history
of the ADEA. In light of the fact that this Court did not even
articulate the disparate impact theory until four years after the
enactment of the ADEA. the unavailability of the disparate
method of proving age discrimination cannot be based
on Congress’ failure to mention “ impact” in either the
text or legislative history of the AD
Those courts that have restricted ADEA plaintiffs to the
disparate treatment theory of proof have attributed to Congress
4
an intent to differentiate between ADEA claimants and Title
VII claimants th _ is found nowhere in either statute. They
have misapplied conventional tools of statutory construction.
They have selectively misread the ADEA’s legislative history,
which, contrary to their conclusions, contains strong affirmative
support for the disparate impact theory. And, they have failed
to recognize how the function and purpose of the disparate
impact theory, as articulated by this Court, is perfectly suited to
policing what the Court has stated it considers to be the
“essence” of age discrimination. These failures bolstered the
erroneous conclusion that Congress did not intend the disparate
impact theory to apply to the ADEA -- a result which Congress
never contemplated.
I. THE COURT HAS CONSTRUED LANGUAGE IN
TITLE Vl THAT IS VIRTUALLY IDENTICAL TO
THAT IN THE ADEA AS THE SOURCE OF THE
DISPARATE IMPACT THEORY.
Section (4)(a)(2) of the ADEA provides that “i]t shall be
unlawful for an employer . . . 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)(2). This language is the
mirror image of § 703(a)(2) of Title VII, 42 U.S.C.
§ 2000e(2)(a): the only difference being that the ADEA
substitutes the word “age” for the words "race, color, religion,
sex, or national origin.” In Griggs v. Duke Power Co., 401
U.S. 424, 426 n.1 (1971), the Court cited § 703(a)(2) as the
statutory foundation for its decision that Title VII “proscribes
not only overt discrimination but also practices that are fair in
form, but discriminatory in operation . . . .” 401 U.S. at 431.
The Court has subsequently confirmed that the “adversely
affect” language, that is identical to both Title VII and the
ADEA, is the source of the disparate i doctrine. See
Connecticut v. Teal, 457 U.S. 440, (1982); General
Electric Co. v. Gilbert, 429 U.S. 125, 137 (1976).
In Griggs, the Court declared: “The objective of Congress
in the enactment of Title VII is plain from the language of the
5
statute.” 401 U.S. at 429 (emphasis added). Accordingly, “[i]f
the existence of the disparate impact approach is apparent from
the ‘plain’ language of Title VII, it must also be apparent from
the plain language of [the] ADEA.” EEOC v. Governor Mifflin
Sch. Dist., 623 F. Supp. 734, 741 (D.C. Pa. 1985).
A. Since the ADEA and Title VII Share Common
and Identical Substantive Provisions, They
Should be Interpreted Similarly.
“The similarity in language [between § 623(a)(2) of the
ADEA and § 703(a)(2) of Title VII} . . . is, of course, a strong
indication that the two statutes should be in pari
passu.” Northcross v. Memphis Bd. of Educ., 412 U.S. 427,
428 (1973). See Morales v. Trans World Airlines, Inc., 504
U.S. 374, 384 (1992); Ingersoll-Rand v. McClendon, 498 U.S.
133, 144-45 (1990); Oscar Mayer & Co. v. Evans, 441 U.S.
750, 756 (1979); Greenwood Trust Co. v. Commonwealth of
Mass., 971 F.2d 818, 827 (1st Cir. 1992), cert. denied, 506 U.S.
_1052 (1993) ("It is, after all, a general rule that when Congress
borrows language from one statute and incorporates it into a
second statute, the language of the two acts should be
interpreted the same way."). The doctrine of in pari materia is
especially appropriate for the ADEA and Title VII given that
the substantive prohibitions of the ADEA “were derived in
haec verba from Title VIL” Lorillard v. Pons, 434 U.S. 575,
584 (1978). See also Arnold v. U.S. Postal Serv., 863 F.2d 994,
1003 (D.C. Cir. 1998) (Garth, J., dissenting) (“That the
ADEA’s coverage and provisions are substantially similar to
the provisions of Title VII is no accident. The similarity
between these two statutes flows from the fact that the ADEA
was modeled after Title VII, relying on much of Title VII's
actual language for its content.”’).
Y — One textual difference between the ADEA and Title VII that courts
have relied on to deny the disparate impact theory to age discrimination
victims is § 623(f)(1) of the ADEA. This provision provides that employers
may make decisions based upon “reasonable factors other than age.” The
provision is fully consonant with the disparate impact method of proving
(continued...)
6
The conclusion that identical language in the ADEA and
Title VII was intended to prohibit the same forms of
discrimination is bolstered by the fact that in addition to
“shar[ing] common substantive features,” the ADEA and Title
VII share “a common purpose: ‘the elimination of
discrimination in the workplace.’” McKennon v. Nashville
Banner Pub. Co., 513 U.S. 352, 358 (1995) quoting Oscar
Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979). In
Northcross v. Memphis Bd. of Educ., 412 U.S. at 428, the Court
reasoned that interpreting statutes with similar language pari
passu is particularly ~ when “the two provisions
share acommon raison d'etre.
F.2d 84, 86 (Sth Cir. 1972)).
B. The ADEA’s Prohibition of Decisions “Because of
Such Individual’s Age” Condemns Unintentional As
Well As Intentional Age Discrimination.
The ADEA’s substantive prohibitions, which were based
directly on those in Title VII, state in pertinent part, that it is
unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any
individual . . . because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). In rejecting disparate impact analysis under the
ADEA, the Tenth Circuit in Ellis v. United Airlines, Inc.,
without citing any authority, declared that “[t]he most obvious
reading of the clause, ‘because of such individual’s age,’ is that
it prohibits an employer from intentionally treating someone
differently based on his or her age.” 73 F.3d 999, 1007 (10th
Cir.), cert. denied, 517 U.S. 1245 (1996). See also Mullin v.
Raytheon, Co., 164 F.3d 696, 700 (1st Cir.), cert. denied, 528
U.S. 811 (1999) (“A commonsense reading of [‘because of
such individual’s age’] strongly suggests that the statute
includes a requirement of intentional discrimination.”).
2 (...continued)
age discrimination and in fact, mirrors disparate impact analysis. Amici
fully agree with the arguments in the National Employment Lawyers
Association’s (NELA) amicus curiae brief that the RFOA provision
supports a claim of disparate impact under the ADEA.
” (citing Johnson v. Combs, 471
7
The problem with the Tenth Circuit’s “obvious reading,” and
the First Circuit’s “commonsense reading” of the statute,
however, is that they are in direct conflict with this Court’s
construction of the identical language contained in Title VIL,
which So lo age —— i ion “because of” a
istic. upreme Court has repeated]
ound the phrase ‘because of to permit disparate impact
analysis, reasoning that the phrase codifies the requirement of
a causal connection between the protected trait and the
challenged employment ice.” Keith R. Fentonmiller, “The
Continuing Validity of Di Impact Analysis for Federal
cr ee Discrimination Claims, 47 AM. U. L. REv. 1071,
1121 (1998). See, e.g., Wards Cove Packing Co. v. Atonio, 490
US. 642, 660 (1989) (“The persuasion burden [under disparate
impact analysis] must remain with the plaintiff, for it is he who
mete se lb pe a individual’s race, color,
etc.],” th was denied a desired employment opportunity.’)
(emphasis added) (quoting 42 U.S.C. § 2000e-2(a)).” “The
causal connection is required in every discrimination case, no
matter what the method of proof.” Fentonmiller, at 1121.
C. The Civil ts Act of 1991 Did Not Affect the
= Impact Claims Under the
In Ellis v. United Airlines, Inc., one of the cases the court
below found “persuasive,” Adams v. Florida Power Corp., 255
¥ — Accord Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42 (1989)
(plurality opinion) (interpreting words “because of” contained in Title VII's _
prohibition against sex discrimination to encompass “indirect stumbling
block{s} to employment opportunities.” such as in disparate impact cases
challenging facially-neutral tests or qualifications); Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 990-92 (1988) (plurality opinion) (holding that
“an employer’s undisciplined system of subjective decision making has
precisely the same effects as a system pervaded by impermissible
intentional discrimination,” because “{ijn both circumstances, the
employer’ s practices may be said to adversely affect [an individual’s| status
as an employee, because of such individual’ s [protected class]}” (quoting 42
U.S.C. § 2000e-2(a)(2)) (emphasis added).
F.3d 1322, 1326 (11th Cir. 2001), the Tenth Circuit concluded
that in failing to add a parallel provision to the ADEA when it
enacted the Civil Rights Act of 1991 (CRA), Congress
“signal[ed] its intent not to provide for a di a
of action under the ADEA.” 73 F.3d at 1 The added
a provision to Title VII to define the burden of proof in a
disparate impact case. Congress’ failure to codify disparate
impact analysis in the ADEA when it enacted the CRA does
not, however, evince an intent to limit the doctrine to Title VIL.
There is si no evidence that the issue was ever considered.
As fully explained in Fentonmiller, 47 AM. U. L. REV. at 1126-
28, arguments to the contrary do not bear scrutiny in logic and
are not supported by the legislative history of the CRA.
Prior to the enactment of the CRA, Title VII did not mention
disparate impact. And as Fentonmiller points out:
even as amended, Title VI fails to state explicitly
unjustified disparate is unlawful; the CRA
did not alter the prohibitory section
703(a) of Title VIL . . . Thus, any ion of
the disparate impact theory under itle VII still -
must invoke the Supreme Court’s long-standing
construction of section 703(a) as prohibiting
practices that are fair in form, but discriminatory in
operation.
47 Am. U. L. Rev. at 1128.
If there is any inference to be drawn from Congress’ actions
or inactions in 1991, it is that the CRA’s failure to define
disparate impact and explicitly make it an unlawful
Es paate CUE © Sine Sees
ea ne ibitory language which has been in the statute since
1964. Id. As previously explained, that language prohibits
discrimination, whether proved through disparate treatment or
Y Pub. L. No. 102-166, 105 Stat. 1071 (1991).
9
disparate impact analysis. Since the absence of the words
“disparate impact” in Title VII prior to 1991 did not make
disparate impact analysis any less legitimate under Title VII,
the same should be true for the ADEA after 1991.
islative restraint another ible
ot pea plausible explanation
under the ADEA. Specifically, “[t}he 1991 amendments
adoption of a controlling rule of law.” NLRB v. Plasterers’
Local Union No 79, 404 U.S. 116, 129-30 (1971) quoting
Girouard v. United States, 328 U.S. 61, 69 (1946); Brecht v.
Abrahamson, 507 U.S. 619, 632 (1993), ing Schneidewind
v. ANR Pipeline Co., 485 U.S. 293, (1988) (“This Court
is reluctant to draw inferences from Congress’ failure
Il THE ADEA’S LEGISLATIVE HISTORY
DEMONSTRATES CONGRESS’ INTENT TO
REDRESS ALL FORMS OF “ARBITRARY” AGE
BIAS, INCLUDING NEUTRAL POLICIES AND
PRACTICES WITH A DISPARATE IMPACT ON
OLDER WORKERS.
m.. v1 the strong textual similarity between the ADEA and
i courts “disparate impact” as a valid
theory under the have looked to its legislative history,
and in particular, to a Report by U.S. Labor Secretary W.
10
Willard Wirtz,” on which Congress drew heavily in the
ADEA. See, e.g., Adams v. Florida Power Corp., 255 F.3d
at 1325; see also Respondent's Brief in Opp. at 14 (asserting
importance of Wirtz Report). Accord Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610 (1993).
Hazen Paper’ s analysis of legislative history concerning the
disparate impact issue was necessarily on te oe
treatment claim was before the Court. See 507 U.S.
at 610. However, no such explanation exists for the
analyses of the ADEA’s ive history in Adams and other
appellate decisions addressing the availability of the
disparate impact theory. A fresh analysis by this Court is now
warranted. Its conclusions should be harmonized with the
diverse and powerful evidence disparate impact
claims under the ADEA, including ’ determination to
outlaw all age discrimination shown to be “arbitrary,” whether
in its intent or its effects.
A. The ADEA’s History Demonstrates Congress’
Intent to Ban All “Arbitrary” Age Discrimination,
Including Age-Neutral Policies and Practices that
Fall More Harshly on Older Workers and Do Not
Meet Genuine Employer Needs.
In EEOC v. Wyoming, the Court recounted the ADEA’ early
legislative history, inckoding uncensummated effects to “ban
discrimination on the basis of age as well as race, color,
religion, sex, and national origin” in Title VII of the 1964 Civil
¥ US. Dep’t of Labor, The Older Worker: Age Discrimination in
Employment, Report of the Secretary of Labor Under Section 715 of the
Civil Rights Act of 1964 (1965) (hereinafter “Wirtz Report”), reprinted in
Joint Appendix (“JA”) at 350-416. The Wirtz Report was compiled after
Congress directed the Secretary to “make a full and complete study of the
factors which might tend to result in discrimination in employment because
of age and the consequences of such discrimination on the economy and
individuals affected,” in Section 715 of the 1964 Civil Rights Act. Pub. L.
No. 88-352, 78 Stat. 241, 265 (1964).
11
Rights Act. 460 U.S. 226, 229, 230-32 (1983).% The Wirtz
Report, the princi t establishing Con a
in ar id. at 229-231, ody om
The Wirtz Report’s “findings were confirmed throughout the
extensive factfinding undertaken by the Executive Branch and
ye or = Th mn ager = Nepean: 9 = Congress
directed the Secretary “to submit specific legislative
for prohibiting age discrimination”; ty yen em
President Johnson and culminated in the 1967 law enacted by
. Id. at 230-32. For instance, the ADEA’s preamble,
29 U.S.C. § 621(a), summarizes in the Wirtz
on “individual and social costs of age di ion.” Id. at
231. Likewise, the ADEA’s text paraphrases strategi
endorsed in the : “to promote employment of der
persons based on their ability rather than age; to prohibit
arbitrary age discrimination in cushonunt ti [and] to srisine
eustegnn and Guten Gad waeefinedia
from the impact of age on employment.” C. § 6210)
The ADEA’s focus on banning “ a a
anticipates the articulation in Griggs of “disparate impact
S mamed for Ge “temarel of eotielel aa, “as
unnecessary barriers to employment when the barriers operate
invidiously to discriminate on the basis of racial or other
Ey classification.” 401 U.S. at 431 (
) pe me Be ee bree ori with ~—-
Congress’ directive to the Secretary g a report on age
bias: “. . . The Secretary of Labor make a report to the
Congress . . containing the results of such study and shall
include in such report such recommendations for legislation to
prevent arbitrary discrimination in employment because of age
as he determines advisable.” JA 354. (emphasis added).
© Efforts at the federal level “date back at least to the 1950s,” Id. at 229
and n.2. In 1903 Colorado became the first state to adopt an age
discrimination law applicable to employment; by 1965 twenty states and
Puerto Rico had such laws. JA 374-75.
12
In the Wirtz Report “arbitrary discrimination” is identified
as the “kind [of bias] which might be dealt with by a statute
a ge ge get al
also described “arbitrary
discrimination” as the conduct most comparable to > gry
discrimination banned by the 1964 Civil Rights Act
Specifically, “arbitrary discrimination” was defined as the
“non-employment” or ion” of older workers “because of
ions about the e of age on their ability to do a job
when there is in fact no basis for these assumptions.” Id. 355
(emphasis in ori ). The Report discussed at length findings
of a special of express — i.e., intentional — age limits in
employment.” However, the Report also condemned employer
conduct with the same result — lesser opportunity for older
workers — but involving unintentional discrimination.
1. The Wirtz Report Identified Neutral Employment
Standards as a Form of Arbitary Discrimination.
Wirtz pinpointed the most serious danger to
employment of older workers as “advancing science” and
“changing ~ he ee These, he explained, lead loyers
ecto cheno job requirements difficult for older w to
ver, such criteria may be unrelated to actual job
needs. JA 359-60. Thus, the Report described as unjust one of
the precise job criteria held unlawful six years later in Griggs
on a theory of disparate impact: a high school graduation
requirement for new employees, unjustified in terms of
applicants’ ability to do the job, and falling more harshly on
members of a protected group, some of whom were
by virtue of experience, but few of whom graduated high
school. Id 359.
Y The study looked at 500 firms in five cities in those states without age
bias statutes in order to assess “the most obvious,” but not the only serious
kind of age discrimination in employment: “employer policies of not hiring
people over a certain age, without consideration of a particular applicant's
individual qualifications.” JA 364-65.
13
The logic of Wirtz’ concern is clear: in a U.S. mith = ‘
where educational attainment was (and still is) growing
—— workers, oe constants oth tik
Secretary therefore concluded, “[a}ny eu
ae A based on educational attainment “will obviously
work against the employment of many workers — unfairly, if
despite his limited schooling, an older worker’s years of
experience have given him the relevant equivalent
a JA 359. In similar fashion, the Wirtz
effects of “aptitude and other entrance tests” on older
workers, concluding:
there is no evidence that older workers’
expenences ae Siieeat Bem these of te
By Rg ety ree
by recency of education and testing experience.
Id. 387. Secretary Wirtz reasoned that some jobs require
workers with “better” or more “recent” education, but others do
not. For instance, “average ormance of older workers
compares most favorably in office jobs, where productivity ...
rose with age.” Id. 388.
Even if Secretary Wirtz in 1965 did not identify the
“disparate impact” method of proof that this Court
as a means to combat “arbitrary discrimination” ip 1971, his
Report clearly acknowledged that age-neutral job criteria could
produce “arbitrary discrimination” against older workers even
though such criteria might be founded simply on faith in
““progress,’” JA 358-59, rather than age-based animus. By
describing such age-neutral bias as “arbitrary,” the
clearly supported it being banned in what became the AD
The Wirtz Report also specifically found evidence of
ee ee in still other types of employment
involving unintentional bias against older
Restrict te Employment of t of Older —— “tA
389, th the Report stated concern about “arbitrary”
14
“[t}he practice o izing personnel g policy
arbitrary rules which ignore individual differences is itself a
factor that deprives companies of talent and qualified workers
of opportunity.” Jd. Similarly, the Report observed with regard
to employer benefit plans that:
The extent to which the range of pension-plan
induced limitations on employment can be
considered to constitute arbitrary disc=mination is
not a simple matter, particularly in light of the
great variations in plan provisions and employer
practice. Case-by-case examination is necessary to
separate reasonable from unreasonable practice.
Id. 397.
2. Regulations and Advisory Opinions Reaffirm
That Age-Neutral, Non-Job-Related Policies and
Practices With Adverse Impacts on Older
Workers May Violate the ADEA.
Secretary Wirtz took advantage of several ities to
provide guidance for interpreting the ADEA. Following the
ADEA’s enactment, the Secretary supervised issuance of two
sets of materials highly relevant to interpretation of the new
law. First, the Dep: t of Labor promulgated interpretative
regulations, see 29 C.F.R. Part 860 (1968), within da after the
ADEA went into effect. Second, in the months following the
opinion letters. Both sources stron language in
the Report to the effect that the was intended to ban
age-neutral, non-job-related, employment practices with
adverse disparate impact on older w .
The regulations required, inter alia, with regard to physical
requirements: (a) that age-neutral fitness standards be
“reasonably necessary for the specific work to be performed”;
(b) that a “differentiation based on a physical examination, but
not one based on age” was “reasonable” only for positions
which “necessitate” stringent-physical requirements; and (c)
15
that pre-employment physical examinations distinguish
between the physical demands of various jobs.” In addition,
the regulations provided that age-neutral employment
evaluation criteria like quantity of output, quality of production,
or\educational level had to have “a valid relationship to job
requirements.” 29 C.F.R. § 860.103(f)(1)-(2).”
The regulations also clarified an important aspect of the
~ Wirtz Report. In the Secretary’s discussion of express age
limits, he noted that
[a] significant proportion [are] arbitrary in the
sense that they have been established without any
determination of their actual relevance to job
requirements, and are defended on grounds
apparently different from their actual explanation.
JA 368. The Report enumerated nine such employer
“defenses” of age limits, eight of which (other than “Desired
age balance in the work force”) have no direct connection to
age. Id. 369. Thus, the regulations confirm, as suggested in the
Report, that even after the enactment of the ADEA, most age
% —__ These provisions, 29 CFR § 860.103(f)(1)-(2), “were entirely
consistent with Secretary Wirtz’s findings three years earlier that physical
requirements (i.c., strength, speed, dexterity, quantity of work) were
employers’ most frequently mentioned consideration for estrictions on the
hiring of older workers, but that many of these requirements had ‘no studied
basis.” Fentonmiller, 47 AM. U. L. REV. at 1104 and 195, 196 (quoting
WR at 8, and referring to the Secretary’s Research Materials at 4, 11-12).
The Secretary submitted the “Research Materials” to Congress in June 1965
along with and in support of the Report. See JA 352.
y In this respect, the regulations also “echoed the Secretary’s prior
criticism of unfair educational requirements that ‘penalize’ the older worker
[and] his finding that written tests with ‘little direct relationship to the jobs’
tended to preclude the employment of otherwise qualified older applicants.”
Fentonmiller, 47 AM.U. L. Rev. at 1104-05 and nn. 198-200 (quoting
Research Materials at 81, and citing id. at 14, Wirtz Report at 3 [JA 358-
60].
16
limits made unlawful by the Act could be defended on age-
neutral grounds, thus raising the issue how to assure that the
“arbitrary discrimination” many of them represented could be
challenged. The regulations did not answer this question by
directing attention to the intentional discrimination such neutral
rules might mask, consistent with the later-developed
“disparate treatment” method of proof. Rather, the regulations
identified guidelines for identifying which neutral rules with
adverse impact on older workers are justified by employer
needs, consistent with the later-developed “disparate impact”
theory of proof.“ The EEOC’s current ADEA regulations are
to the same effect, as Judge Barkett recognized in her Adams
concurrence. That is, they recognize that the “reasonable
factors other than age” defense “works in tandem with the
business necessity defense in the disparate impact analysis.” _
255 F.3d at 1328.¥
These regulations are entitled to substantial deference in
interpreting the ADEA’s text, to the extent the Court decides
that language employing traditional methods of statutory
construction is ambiguous authorized. Chevron USA v. Natural
Resources Def. Council, 467 U.S. 837, 843 n.9 (1984). See INS
v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2290 n.45 (2001);
FDA v. Brown & Williamson Tobacco Co., 529 U.S. 120, 132
(2000) (where an agency responsible for administering a statute
19 The same can be said of the regulations as revised in early 1969 to
clarify, for example, that even a validated employee test had to be
“specifically related to the requirements of the job,” as well as “fair and
reasonable.” 29 C.F.R. § 860.104(b) (1969).
LY Congress reassigned responsibility for administering the ADEA from
the Department of Labor to the EEOC in 1979. See Reorg. Plan No. 1 of
1978, 92 Stat. 3781, 43 Fed. Reg. 19807 (May 9, 1979). Current
regulations require that employment practices with an adverse impact on
individuals 40 and over that are defended as based on reasonable factors
other than age “can only be justified as a business necessity.” 29 C.F.R.
§ 1625.7(d) (2001). And if an employment test has such adverse impact, it
must be validated according to the Uniform Guidelines on Employee
Selection Procedures See id. § 1607 (2001).
17
has issued rules interpreting it, and Congress has not expressed
its intent “unambiguously,” the “reviewing court must respect
the agency's construction of the statute so long as it is
permissible”). See also Adams, 255 F.3d at 1328 and n.10
(Barkett, J., concurring).
Also in 1968, Secretary Wirtz’ Department of Labor issued
several advisory opinions regarding ADEA implementation
confirming the view that age-neutral employer practices were
subject to the Act. These declared, inter alia, that “‘facially-
neutral job requirements and employment practices, such as
testing, must be validated and job-related.’” Fentonmiller, 47
AM.U. L. REV. at 1104 and n.204 (citing Charles T. Lindquist,
Administrator, Wage and Hour and Public Contracts Divisions,
U.S. Dep’t of Labor, ADEA Opinion Letter (August 1, 1968)
and Ben P. Robertson, Deputy Administrator, Wage and Hour
and Public Contracts Divisions, U.S. Dep’t. of Labor, ADEA
Opinion Letter (October 9, 1968)).
Wirtz consistently urged that the ADEA be interpreted
broadly, in order to root out unfair and arbitrary treatment of
older workers. In 1976 Congressional hearing testimony,
former Secretary Wirtz lamented the lack of progress in
eliminating barriers to age bias in the workplace and
concluded: “there is more reason now, not less, for rigorous
enforcement of the ADEA.” The Secretary also expressed
expansive views of age discrimination legislation in his 1967
testimony, stating that the purpose of the proposed ADEA was
“to get away from arbitrary age distinctions and go to judgment
of individuals on their merits;” he wondered “whether we
should strike any reference to age at all in any connection and
look at employment only in terms of whether the individual
does have or does not have the capacity to do whatever job it is
1 Impact of the Age Discrimination in Employment Act of 1967, Before
the Subcomm. on Retirement Income and Employment, House Select
Comm. on Aging, 94th Cong. 2d Sess. 81 (1976).
18
that that individual is seeking.”4” In the 1965 Report, at the
outset of his “Conclusions and Recommendations,” Wirtz
declared:
It would be the worst misfortune if the problem of
age discrimination in employment, having come to
the Congress’ attention, were posed so narrowly as
to result in superficial prescription.
JA 403. Yet, that would be the precise result if the Eleventh
Circuit’s ruling is affirmed.
B. The Eleventh Circuit Erred in Concluding that
the Legislative History of the ADEA Precludes
Reliance on the Disparate Impact Approach to
Proving Age Discrimination
The Eleventh Circuit cited two grounds related to legislative
history for its affirmance of the district court’s conclusion that
the ADEA does not permit liability to be established by the
disparate impact method of proof. Each is unfounded. First,
the court opined that the Wirtz Report differentiated between
proof now known as disparate treatment and disparate impact
and recommended that Congress only ban the former. Second,
the court alleged that the history of the ADEA differs materially
from that of Title VII, “which the Supreme Court in Griggs
relied on to find a cause of action for di impact.”
The Adams court’s oversimplified rendering of the Wirtz
Report ignores numerous instances in which the
condomas os “eitdeaey” end calied for the tiadanion of
disparate impacts of neutral employer practices on older
workers. As demonstrated supra at 12-14, it was clear error to
suggest that the Report concluded that “arbitrary
1¥ Age Discrimination in Employment, 1967: Hearings on S. 830 & S.
788 Before the Subcomm. On Labor of the Senate Comm. On Labor and
Pub. Welfare, 90th Cong. 51-52 (1967). Secretary Wirtz also asserted that
the labor market was “putting more and more people with more and more
competence and capacity out to pasture earlier and earlier.”
19
discrimination” corresponds only with “disparate treatment
based on stereotypical perceptions of the elderly,” or that all
rll “factors affecting older workers, such as policies with
should be addressed in alternative ways.” 255
Fad atl 1325. Rather, the Report mapped out a more complex
taxonomy of: age discrimination, in which some “arbitrary” age
bias is explicit, but some is founded on actions of an
“unthinking majority,” JA 358, and still more is premised on
unjustifiable — but age-neutral — reliance on tests, physical and
educational criteria and other factors unrelated to a worker’s
productivity or ability to do the job in question. Thus, in the
Secretary’s view, some policies that have what we now call
“disparate impact,” amounted to arbitrary bias and constituted
an appropriate target for legal liability.
The Adams court also endorsed a superficial analysis of the
Wirtz Report in Ellis. The Ellis court asserted, without
explanation that “arbitrary discrimination” equals intentional
bias and all factors affecting “older workers more strongly as
a group” equals disparate impact. See Ellis, 73 F.3d at 1008
(citing Wirtz Report at 5, 11) See JA 361-62, 378. Hence,
neither Ellis nor Adams reflects an accurate reading of the
Report; any review of the Secretary’s background “Research
Materials;” any consideration of Wirtz’ 1967 Senate testimony
(or any other legislative records of Congress’ original
enactment of the ADEA); any analysis of the 1968 interpretive
regulations — also penned by Secretary Wirtz; or of the 1968
advisory opinions issued by Wirtz’ Labor Department. Surely
some greater effort was necessary to justify the Adams court’s
cavalier use of terms invented years after the ADEA’s
enactment in 1967 — “disparate treatment” and “disparate
impact” — to interpret a report issued in 1965.
The Adams court compounded its error by characterizing as
alien to the Wirtz Report, and thus to the legislative history of
the ADEA, a key aspect of Congress’ work in enacting Title
VII: attention to whether a challenged job requirement had “‘a
manifest relationship to the employment in question.”” 255
F.3d at 1325-26 on Griggs, 401 U.S. at 432). Yet the
very same concern drove Secretary Wirtz to catalogue various
harms to older workers, including some due to neutral
20
employer Practices, and to condemn all those he deemed
“arbitrary,” precisely because they had no basis in “ability to do
ajob.” JA 355. Hence, the legislative records of both Title VII
and the ADEA support reliance on the disparate impact method
of proof.
Finally, regardless how one reads the legislative history, the
prohibitions in § 4 of the ADEA, 29 U.S.C. § 623, do not
contain the word “arbitrary.” Instead, the prohibitory language
mirrors that of Title VII. Consequently, the specific prohibitory
language of § 4 trumps any contrary inference that may arise
from the legislative history or in language in the findings and
purpose section of the statute. See Bissette v. Colonial
Mortgage Corp., 477 F.2d 1245, 1246 n.2 (D.C. Cir. 1973);
— Dist. of Columbia, 650 F. Supp. 482, 484 (D.D.C.
1986)
Il. THE COURT HAS RECOGNIZED THAT
DISPARATE IMPACT IS MORE EFFECTIVE
THAN DISPARATE TREATMENT IN POLICING
WHAT THE COURT CONSIDERS TO BE THE
“ESSENCE” OF AGE DISCRIMINATION.
In Watson v. Fort Worth Bank & Trust, a plurality of the
Court noted that the disparate impact theory of proof is
ssassuny ae cutabas “tapaieamenal aananeeneaiiamaaaae
ee oa 977, 990 (1988), because they cannot
be “adequately policed through disparate treatment analysis.”
Given that the Court has also stated that the “essence of age
discrimination” is older workers being harmed by “inaccurate
and stigmatizing stereotypes,” Hazen Paper Co., 507 U.S. at
if See also Alexander v. Choate, 469 U.S. 287, 292-99 (1985)
(discussing the appropriateness of disparate impact analysis under § 504 of
the Rehabilitation Act since discrimination against the handicapped results
from thoughtlessness not animus) (emphasis added).
21
610 the disparate impact theory must be available to attack
the serious problem of age discrimination in the work place.”
hee a
comment in Hazen Paper “{d] treatment
the essence of what Congress Seneuas Gbashategedhibhs tn tes
” 507 U.S. at 610. Based on that language, which was
not central to the decision, several courts have wrongly inferred
that “the ADEA only prohibits intentional discrimination.”
Ellis, 73 F.3d at 1008. See also Mullin, 164 F.3d at 701(“the
le implication of (Justice O’Connor’s] statements is
that the imposition of disparate impact liability would not
address the evils that was attempting to when
it enacted the ADEA.”). courts erred in taking such a
giant leap from dictum on the nature of age discrimination.
First, while there can be no question that one of the reasons
Congress enacted the ADEA was to combat discrimination
based on “stereotypes unsupported by objective fact,” EEOC v.
Wyoming, 460 U.S. at 231, there is no basis in either the
Y In EEOC v. Wyoming, the Court also recognized, as the Wirtz Report
explained, that irrational judgments based on age stereotypes were “often
defended on grounds different from [their) actual causes.” 460 U.S. at 231;
see JA 368-71. The Report elaborated that explicit age limits often were
defended on age-neutral grounds, which non-age-based rationales were
“undoubtedly believed to be in many cases” the true explanations of age
limits. Jd. 369.
1% Judge Cudahy recognized this seemingly obvious contradiction in his _
dissent from EEOC v. Francis W. Parker School: “[T)he disparate impact
theory of liability is designed as a means to detect employment decisions
that reflect ‘inaccurate and stigmatizing stereotypes,’ . . . This is precisely
the determination that Hazen Paper says the ADEA is intended to outlaw.”
41 F.3d 1073, 1080-81 (7th Cir. 1994), cert. denied, 515 U.S. 1142 (1995)
(emphasis in original). See also Steven J. Kamenshine, “The Cost of Older
Workers, Disparate Impact, and the Age Discrimination in Employment
Act, 42 Fla. L. REV. 229, 309 (1990) (“[T]he assertion that age
discrimination results from unconscious stereotyping arguably cuts in favor
of, not against, the application of disparate impact in age cases.”).
22
language or the legislative history of the ADEA to restrict its
reach to employment decisions based on stereotypes.” Surely
it was not the intent of this Court in Hazen Paper to thwart the
will of Congress by grafting an additional criterion of proof
onto the ADEA, severely curtailing the Act's broad
protections.¥
1” Taken at face value, this Court’s comments are corroborated in the
legislative record of the ADEA, which featured prominently the seemingly
nationwide phenomenon of “persistent and widespread use of age limits in
hiring.” JA 364-67, 404. Yet the very same can be said of Congress’
proceedings in enacting Title VII. That is, “facially-race discriminatory
employment practices [were] the primary impetus behind the passage of
Title VII in 1964,” yet “[o]bviously disparate treatment does not define the
limit of Title VII's reach, even though it may ‘capture the essence’ of Title
VII's prohibitions.” Fentonmiller, 47 AM.U. L. REV. at 1112; see
Kamenshine, 42 PLA. L. REV. at 291(“in the same way Congress was
preoccupied with overt racial policies when it outlawed race discrimination
under Title VII”). It follows that Congress’ and Secretary Wirtz’s attention
to “overt age restrictions as the most glaring age-based obstacles,” id.,
should not limit the reach of the ADEA.
iY Incredibly, courts have gone even further and required ADEA
plaintiffs to produce evidence that the employer’s decision was motivated
by inaccurate and stigmatizing stereotypes about older workers. See, e.g.,
Dilla v. West, 4 F. Supp. 2d 1130 (M.D. Ala. 1998), aff'd per curiam, 179
F.3d 1348 (11th Cir. 1999) (holding that employer did not violate the
ADEA when it refused to hire applicants based on their proximity to
retirement eligibility because “the mere fact that there exists a perfect
correlation, or even a direct link, between age and the factor purportedly
relied upon by the employer,” id. at 1142-43, does not mean the employer
impermissibly relied on age given that “age discrimination occurs only
when ‘the problem of inaccurate and stigmatizing stereotypes’ about older
workers are operative.”) Jd. at 1142 (emphasis added).
23
A. Stereotyping Is Often Unintentional.
Since actions besed on stereotypes are mot necessarily
intentional, it is erroneous to conclude that because
inaccurate stereotypes are often behind age discrimination the
ADEA only prohibits intentional discrimination. Actions based
on can be, and more often than not are,
unin , and the disparate impact theory is particularly
walh ecited 66 conten diebaatasties exnesd ty woneuaions
stereotyping. After all, the premise of the disparate impact
theory is that “not all discrimination is apparent and overt. It
is sometimes subtle and hidden. It is at times hidden even from
the decisionmaker herself, reflecting perhaps subconscious
predilections and stereotypes.” EEOC v. Francis W. Parker
Sch.,41 F.3d at 1080 (J. Cudahy, dissenting). This is especially
true of age discrimination. Applying the disparate impact
Geory to ths ADGA is consistent wah the sescerch on the
nature and causes of ageism.
iy = The argument that disparate impact is inappropriate where
discrimination is caused by stereotypes, not animus, “jeopardize(s} the
availability of disparate impact in gender cases as well because gender
discrimination, like age, is based more on paternalistic stereotypes than on
malevolence.” Kaminshine, 42 FLA. L. REV. at 310 (footnote omitted). For
that matter, while “race discrimination is steeped in a history of unparalleled
hatred and bigotry . . . race discrimination today is often based on the same
kind of stereotypes and group-based assumptions about ability that form the
basis of age discrimination.” /d.
2 The term “ageism” was coined by Robert N. Butler, M.D. to describe
the “deep and profound prejudice against the elderly which is found to
some degree in all of us.” Robert N. Butler, WHY SURVIVE?: BEING OLD IN
AMERICA 11 (1975). Butler describes ageism as:
@ process of systematic stereotyping of and
discrimination against people because they are old, just
as racism and sexism accomplish this with skin color and
gender . .. Ageism allows the younger generations to see
older people as different from themselves; thus they
(continued...)
24
Age distinctions are particularly unique because
they so often are used thoughtlessly rather than as
intentional expressions of invidious malice or even
typically results from employers’ ignorance about
Older workers, rather than active dislike of them.
Because of this relatively innocuous nature of
without recognizing or caring that these policies
may have a disparate impact upon older workers.
Howard Eglit, “The Age Discrimination in Act’s
Affirmative Defense,” 66 BOSTON LAW REV. 155,
222 (1986).
Recent research has focused on this unconscious
discrimination, also called “implicit ageism.” [Tjimplicit
ageism’ is defined as the thoughts, feelings, and behaviors
toward elderly people that exist and operate without conscious
awareness or control, with the assumption that it forms the
basis of most interactions with older individuals.” Becca R.
Levy, “Eradication of Ageism Requires Addressing the Enemy
Within, 41 THE GERONTOLOGIST 578, 578 (Oct. 2001). Ina
related study, the authors explained:
judgments at a level below that at which we
consciously ascribe traits to others. Such
‘automatic’ ageism may be hard to eradicate if it
nus been insenusnted take cur intial pemensiity
theories or social schemata and is evoked without
awareness on our part.
2 (continued)
subtly cease to identify with their elders as human
beings.
Id. at 12.
25
Charles W. Perdue & Michael B. Gurtman, “Evidence for the
Automaticity of Ageism,” 26 JOURNAL OF EXPERIMENTAL
SOCIAL PSYCHOLOGY 199, 201 (1990). Unconscious is
pervasive in our society. “Ageism permeates our culture so
thoroughly and conditions our attitudes and perceptions so
much that most of us are unaware of most of the ageism in it.”
yy Palmore, AGEISM: NEGATIVE AND POSITIVE 98 (2d
).
Unconscious discrimination is not unique to age
discrimination. Like ageism, “[rJacism is in large part a
product of the unconscious. It is a set of beliefs whereby we
irrationally attach significance to something called race. .
Charles R. Lawrence, Ill, “The Id, the Ego, and Equal
Protection: With Unconscious Racism,” 33 STAN.
L. REV. 317, 330 (1987). However, “[a] survey of implicit
mm gag ened me nee ey ef ee
re) old people proportion than for implicit racism
or sexism. on tes 78.
B. is the Most Effective Tool f
Disparate fe or
It is well established in Title VII jurisprudence that disparate
impact is a valuable tool in ferreting out subtle forms of
discrimination. See, e.g., In re: Employment Discrimination
Litigation Against the wae longo 198 F.3d 1305, 1321
(11th Cir. 1999) (“a of disparate impact can be
highly probative of the employer’s motive since a racial
‘imbalance is often a telltale sign of ful
discrimination.’””) (quoting International Board of Teamsters
v. United States, 431 U.S. 324, 339-40 n.20 (1977)). Indeed,
well hidden. See Albemarle Paper Co. v. Moody, 422 US.
405, 425 (1975) (employer refusal to follow alternative
2/ See Deborah L. Rhode, “The ‘No-Problem’ Problem: Feminist
Chalenges and Cultural Change,” 100 YALE L_J. 1731, 1764-68 (1991) for
a discussion of studies establishing unconscious sexism.
26
workplace practice with lesser discriminatory impact
caldinastukibochaiiaantumiierensmmenee waar for
discrimination); Connecticut v. Teal, 457 U.S. 440, 447 (1982)
(same).
The fact that “age discrimination is characterized more by
indifference and thoughtless bias than by overt hostility . . .
makes detection of unlawful motive impractical and enhances
the risk of evasion.” Kamenshine, at 318. “If individuals are
not aware that a negative stereotype of age has been
automatically triggered by a person’s older age, they are likely
ee ee , failure to hire. . . ), to another
factor that better fits their preferred self-images as reasonably
fair individuals. Thus, rather than acknowledge that ‘I hired a
younger person in preference to an older person,’ a
rationalization, such as the older applicant’s personality or
training, might be evoked.” Levy, at 578. See also Perdue, &
Gurtman, at 200 (“characterizing the aged as unemployable,
unintelligent, and ‘naturally’ aathe may help to rationalize
discriminatory practices in employment... .”). As one
commentator observed with regard to the same phenomenon in
the context of race discrimination:
When racism operates at a conscious level,
opposing forces can attempt to ail upon the
rationality and moral sensibility of racism’s
proponents . ... But when the discriminator is not
aware of his prejudice. .neit a
is likely to
oop intractable, nd tokaomie
becomes imperative.
@ See also Adams, 255 at 1327 (in Griggs “the Supreme Court
recognized that although discriminatory intent could be hidden, even from
the decisionmaker himself, its effects in the workplace could not.”) (Barkett,
J. concurring) (emphasis added); EEOC v. Francis W. Parker Sch., 41 F.3d
at 1078 (“Moreover, disparate impact theory does not relieve the EEOC of
its obligation to prove the error of the employer’s ways. ... Ultimately, the
EEOC must show that Parker’s rationale is pretextual and ... is predicated
on some stereotype, conscious or unconscious’) (emphasis added).
27
Lawrence, 39 STAN. L. REV. at 349. Disparate impact is just as
crucial to combating age discrimination as it is to challenging
prejudice based on race, ee oe of Oe. “People are
more conscious of these latter biases but often are unaware of
their age bias. Age stereotypes persist because le tend not
to examine the basis for these stereotypes also give
ge meme te dag ey nema |
Raymond F. Gre , AGE DISCRIMINATION IN THE
yah. WORKPLACE: ATA YOUNG AGE 26-27 (2001).
Those circuits that have precluded the application of
disparate impact to ADEA cases “seem to assume that only
barriers based on animus create problems. But one can have a
“status quo’ based on inaccurate stereotypes that society needs
to destroy as much as one can have ‘status quo’ based on
animus that should be swept away.” Roberta Sue Alexander,
“Comment: The Future of ago foe ysis for Age
Discrimination in a Post-Hazen World, 25 DAYTON L. REV.
75, 94 (1999).
If ADEA claims can be established only through disparate
treatment analysis, ee proof of conscious
discriminatory purpose, indi discrimination claims will
not be able to address the issue of unconscious prejudice and
the “essence” of age discrimination will be ins d from
much of the ime.” David Benjamin Oppeahelmer, “Negligent
Discrimination,” 141 U. Bas eaghenk ype 899, 903-04 (1993).
ped Bn A, uo” of age bias based on
research on age stereotyping
suggests that we have sready reached such a “status quo.
research demonstrates that most individuals harbor
specific beliefs about older people, that most of those beliefs
are inaccurate, and that the stereotypes have persisted in
disadvantaging older persons for decades. For example,
2/ J. Levin and W.C. Levin, AGEISM: PREJUDICE AND DISCRIMINATION
(continued...)
28
research on age stereotyping in employment has consistently
found that nr employees are almost always treated and rated
less favorably than younger employees.
The claim that older workers do ae suffer from “the
entrenched effects of past discrimination” is a flawed basis
for discarding disparate impact theory under the ADEA. As
this Court itself has recognized, “We have not limited this
principle [that some facially neutral employment practices are
unlawful even in the absence of discriminatory intent] to cases
in which the challenged practice served to perpetuate the effects
of py At intentional discrimination.” Watson, 487 U.S. at
98
2 (continued)
AGAINST THE ELDERLY 70-96 (1980).
a See, e.g., Marc Bendick, Jr., Lauren E. Brown, & Kennington Wall,
“No Foot in the Door: An Experimental Study of Employment
Discrimination Against Older Workers,” 10(4) JOURNAL OF AGING &
SOCIAL Pouicy 5 (1999); Marc Bendick, Jr., Charles W. Jackson, & J.
Horacio Romero, “Employment Discrimination Against Older Workers: An
Experimental Study of Hiring Practices,” 8(4) JOURNALOF AGING & SOCIAL
POLICY 25 (1996); William C. Levin, “Age Stereotyping,” 10(1) RESEARCH
ON AGING 134 (March 1988); Bruce J. Avolio & Gerald V. Barrett, “Effects
of Age Stereotyping in a Simulated Interview,” 2 PSYCHOLOGY AND AGING,
March 1987, at 56; Benson Rosen & Thomas H. Jerdee, “The Nature of
Job-Related Age Stereotypes,” 59 JOURNAL OF APPLIED PSYCHOLOGY 511
(1976); Benson Rosen & Thomas H. Jerdee, “Influence of Age Stereotypes
on Managerial Decisions,” 61 JOURNAL OF APPLIED PSYCHOLOGY 428
(1976).
2/ — DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 732 (3d Cir.),
cert. denied, 516 U.S. 916 (1995).
2 See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 339-40 (1977) (height
and weight requirements had a disparate impact on women; a decision that
had nothing to do with historical discrimination).
29
The Wirtz Report also provides several answers to the
argument that ageism lacks any history of entrenched bias.
First, the Report documents a substantial record of “persistent
and widespread” discrimination dating back at least to the
beginning of the century. JA 374, 404. Second, it describes in
detail the reasons why “arbitrary” age bias is entrenched:
pervasive irrational employer stereotypes, conscious and
unconscious, discounting the capacity of older workers to
perform on the job. Jd. 368-73. Further, the perpetuation
rationale fails to account for the fact that Title VII addresses
characteristics in such a way as to cover all workers, including
whites, males, and other groups that have not been victimized
by entrenched, historic patterns of invidious discrimination.
Moreover, whether or not stereotypes are rooted in history is
irrelevant to the debilitating effect those stereotypes have on
older persons. Although ageism may be primarily a twentieth
century phenomenon, stereotypes about older persons are
ingrained and commonplace in our society. The perpetuation
rationale also loses much of its appeal as time marches on and
age discrimination remains a pervasive force in our society.
The ADEA was enacted 35 years ago, yet, age discrimination
in employment continues to impede the achievement of
equality in the work place.” “Like racism and sexism, ageism
remains recalcitrant, even if below the surface. But it can be —
and has been — churned up from its latent position.”
CONCLUSION
In McKennon v. Nashville Banner Publishing Co., the Court
declared that “Congress designed the remedia! measures in [the
2 See, e.g., Robert Manor & T. Shawn Taylor, Age-Bias Complaints Up
Sharply Older Workers’ Higher Salaries are Big Targets for Employers,
CHICAGO TRIBUNE, July 15, 2001, at C1; Stan Hinden, Forced to Retire
Before You're Ready The Merge-and-Downsize Era’s Layoffs Hit Older
Workers Especially Hard, WASH. POST, June 6, 1999, at HO1.
/ Robert N. Butler, “Dispelling Ageism: The Cross-Cutting
Intervention,” 503 THE ANNALS 138, 140 (1989).
30
ADEA and Title VII] to serve as a ‘spur or catalyst’ to cause
employers ‘to self-examine their employment practices and, to
endeavor to eliminate, so far as possible, the last vestiges’ of
discrimination.” 513 U.S. at 358 quoting Albermarle Paper Co.
v. Moody, 422 U.S. 405, 417-18 (1975). Without the disparate
impact theory to challenge subtle forms of age discrimination,
employers will not be encouraged to examine policies which
adversely effect older workers, but instead will continue to
ignore them so that rather than being eliminated, the last
vestiges of age discrimination will likely become entrenched
“operat[ing] to ‘freeze’ the status quo of prior
employment practices.” Griggs, 401 U.S. at 430.
For the foregoing reasons, amici curiae y submit
that the judgment of the United States Court of Appeals for the
Eleventh Circuit should be reversed. Aynici urge this Court to
= i ng disparate impact theory of proof is applicable to
Respectfully submitted,
Laurie A. McCann*
Daniel B. Kohrman
Thomas Osborne
AARP Foundation Litigation
Melvin Radowitz
AARP
601 E Street, NW
Washington, DC 20049
(202) 434-2060
Counsel for Amici Curiae
* Counsel of Record
January 24, 2002
APPENDIX
Founded in 1915, the American Association of
University Professors (AAUP) is an organization of
approximately 45,000 faculty members and research scholars
in all academic disciplines. Among the AAUP's central
functions is the development of policy standards covering
academic freedom, tenure, institutional governance, freedom
from discrimination, and other key issues in higher education.
See, e.g., On Discrimination and 1940 Statement of Principles
on Academic Freedom and Tenure, AAUP Policy Documents
& (9th Ed., 2001). As this Court has recognized,
s policies are widely respected and followed as models
in American colleges and universities. See, e.g., Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 579 n. 17
(1972); Tilton v. Richardson, 403 U.S. 672, 681-82 (1971).
AAUP and its members are deeply concerned that the
unavailability of the disparate impact method of proof under
the Age Discrimination in * he mati Act (ADEA) would
undermine the ability of professors to ensure freedom from age
discrimination in the academic workplace.
The National Association for the Advancement of
Colored People (NAACP), established in 1909, is the nation’s
oldest civil rights organization. It has state and local affiliates
throughout the nation. The fundamental mission of the
NAACP is the advancement and improvement of the political,
educational, social and economic status of minority groups; the
elimination of racial prejudice; the publicizing of adverse
effects of racial discrimination; and the initiation of lawful
action to secure the elimination of racial bias. The NAACP has
as both plaintiff and amicus curiae before this Court
and other courts throughout the nation in numerous civil rights
cases.
The National Council of La Raza (NCLR) is the largest
national Latino civil rights organization, which is an “umbrella
organization” for more than 270 local affiliated community-
based organizations (CBOs) and about 33,000 individual
associate members. In addition to providing capacity-building
assistance to our affiliates and essential information to our
A-l
individual associates, NCLR serves as a voice for all Hispanic
subgroups in all regions of the country. As a civil rights
organization, NCLR is vitally concerned with the maintenance
of a strong, vigorous, and active federal civil rights
enforcement system. NCLR believes that the proper use of the
disparate impact standards is essential to protecting Hispanics,
older workers, and other groups covered by Title VII of the
Civil Rights Act and other laws prohibiting employment
discrimination, from bias in the workplace.
The American Jewish Congress is an organization of
American Jews that seeks to protect fundamental constitutional
freedoms, particularly the civil rights and liberties of American
Jews and all Americans. Since Jews in America are an aging
population, the American Jewish Congress is particularly
concerned with issues that affect the welfare of older
Americans. In this connection it has called attention to such ~
problems as nursing home abuses, problems with Medicare,
and issues involving the effectiveness of various state agencies
laws banning age discrimination; and has filed
briefs in this Court in such cases as Cruzan v. Director,
Missouri Department of Health.
The National Partnership for Women & Families, a
non-profit, national advocacy ization founded in 1971 as
the Women’s Legal Defense Fund,
promotes equal opportunity
for women, quality health care, and policies that help women
and men meet both work and family responsibilities. The
National Partnership has devoted significant resources to
combating sex, race, and other forms of invidious workplace
discrimination and has filed numerous briefs amicus curiae in
the U.S. Supreme Court and in the federal circuit courts of
appeal to advance the opportunities of women and minorities _
in employment.
A-2
The National Women’s Law Center (“NWLC’”) is a
nonprofit, legal advocacy organization dedicated to the
advancement and protection of women’s rights and the
corresponding elimination of sex discrimination all facets
of American life. Since 1972, NWLC has worked to secure
ev for women in the workplace, including
full enforcement of Title VII of the Civil Rights
Act of 1964 as amended. NWLC has participated as amicus
curiae in numerous cases involving employment law and civil
rights issues.
A-3
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.