Amicus Curiae Brief — Adams v. Florida Power Corp.

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(1) Supreme Court US.

FILED

WANDA ADAMS, LEO L. FLOYD, et al.,

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

45 WR

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

C. The Civil Rights Act of 1991 Did Not

Affect the Viability of Disparate Impact

Claims Under the ADEA

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

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 Identified —

Employment Standards as a Form o

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

Impact Approach to Proving Age

SDNO s's vai cecescescuwibeutaine 18

fil 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

PC SSEET occ csceacecbscbendeas 20

A. Stereotyping Is Often Unintentional ......... 23

B. rem es is the Most Effective Tool

for ietag Deatedeamen Based on

PPE RPO er ES EE 25

CURTLA ANI, 00.60 06is bteceddsssns oe 29

TABLE OF AUTHORITIES

CASES Pages

Adams v. Florida Power Corp.,

255 F.3d 1322 (11th Cir. 2001) ....,......... passim

Albermarle v. Moody, :

DTD 6cadcsecoccedceccevecees 25, 30

Alexander v. Choate,

EE ‘cduecaccendebsccececcecesce 20

Arnold v. U.S. Postal Serv.,

863 F.2d 994 (D.C. Cir. 1998) ........ 6. ccc eee eens 5

Bissette v. Colonial Mortgage Corp.,

477 F.2d 1245 (D.C. Cir. 1973) .......... 0c ee eeee 20

Brecht v. Abrahamson,

EE ccvcdccegsbascésecencecccces 9

Camacho v. Sears Roebuck,

939 F. Supp. 113 (D.P.R. 1996) ......... 2.65 e eee )

Chevron USA v. Natural Resources Defense Council,

bee dccececnensoecceceocecs 16

Connecticut v. Teal,

EE PT 4, 26

DiBiase v. SmithKline Beecham Corp.

48 F.3d 719 (3d) cert. denied, 516 U.S. 916 (1995) .

Dilla v. West, |

4 F. Supp. 2d 1130 (MLD. Ala. 1998), aff'd per curiam,

179 F.3d 1348 (1ith Cir. 1999) .......... 6c cee 22

Dothard v. Rawlinson, :

eee od oe coneecacceeses 28

EEOC v. Francis W. Parker School,

41 F.3d 1073 (7th Cir. 1994), cert. denied,

Se EE cbicdétoccccentocosée 21, 23, 26

EEOC v. Governor Mifflin Sch. Dist.,

623 F. Supp. 734 (D.C. Pa. 1985) ............00000- 5

EEOC v.

460 U.S. sory 983) Stee 0 ee chadueewede 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.,

I a hs ed ae 16

General Electric Co. v. Gilbert, ;

EE oe ee 4

Girouard v. United States,

I i ih i ee a a i)

Greenwood Trust Co. v. Commonwealth of Mass.,

971 F.2d 818 (1st Cir. 1992),

cert. denied, 506 U.S. 1052 (1993) ................. 5

Griggs v. Duke Power Co.,

RR 4, 11, 19, 26, 30

ptt ty v. Biggins |

604 1993 Kebdidecee cedceeds 10, 20, 21, 22

Ingersoll-Rand v. McClendon,

Ss MEET. Swocccosdaccceecccosdeeucet 5

In re: Employment Discrimination Litigation

inst the State of Alabama,

ee 25

INS v. St. Cyr,

SPEED 6s bcd cébocccddstscocecceess 16

International Board of Teamsters v. United States,

Ge a eee ccc cccccccctudetcvocceseoces 25

Johnson v. Combs,

Fe OGG BED ccedccdéccccccccsoceses 6

Johnson v. Santa Clara Transp. Agency,

GED 6cé ceccctccadesoccscccoccess 4

Lorillard v. Pons,

GP EEE ccccccccccdésbccscvctccoccccs 5

McKennon v. Nashville Banner Pub. Co.,

Tt Pn ccscegnceecesssddued 2, 6, 29, 30

Morales v. Trans World Airlines, Inc.,

De Kiccggececdsesescoceesotsese 5

Mullin v. Raytheon, Co.,

164 F.3d 696 (st Cir.) cert. denied,

DEED dbcnebécoocesscvouscesecs 6, 21

NLRB v. Plasterers’ Local Union No 79,

SP OEE: .d cccdédcccdccecéesesccesoecs 9

Northcross v. M is Bd. of Educ.,

PL ER rrr re Tr TTT 5,6

O'Connor v. Consolidated Coin Caterers Corp.,

PP cc ccddvcesebe Sovbcoccocccecse 2

& Co. v. Evans,

nar v DE Bikidh sasecoacouecedssovcece 5,6

Oubre v. Operations, Inc.,

i iviin Jodudecddceesepeccecece 2

Price Waterhouse v. Hopkins,

SPEED adN es cbd ce cttvbcbtdavvddddde 7

Reeves v. Sanderson Plumbing Prods. Inc.,

Ps ST Nodish ebicocdsccicécccéevedes 2

Samuels v. Dist. of Columbia,

650 F. Supp. Pe ME wo cadéivecccbedest 20

Schneidewind v. ANR Pipeline Co.,

Se ED Ga conccccccacpisccvcctedebet 9

Wards Cove Packin ¥ v. Atonio,

490 U.S. 642 (1 daccesisqucdsctaéécéosetote 7

Watson v. Fort Worth Bank & Trust,

Se SEED ed dnceseteccédésdéccovene 7, 20

STATUTES AND LEGISLATIVE HISTORY

Age Discrimination in Employment Act (ADEA),

PD ccncveccecnsavesesbbeibéosees 11

PR ED, cbWaSe~s viwevcvsudédées cose’ 11

tic ectdicceccdvebadetédedeoese 20

ED tio o6 eeancucsepntessnnedéus 6

PED Setidedseccechdsbecsscia 4,5

ED. coccccucdccsddscdeosdevetes 5

Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1071 (1991) ........ 8,9

Title VII of the Civil Rights Act of 1964,

ee ED occ cccuccetbocedle coon: 4,7

Age Discrimination in Employment, 1967.

Hearings on S. 830 & S. 788 Before the Subcomm.

Impact of the Age Discrimination in Act of 1967,

Before the Subcomm. on Retirement and

os seg House Select Comm. on Aging,

PETIT ETT TTTT TT 17

Plan No. 1 of 1978, 92 Stat. 3781, .

43 Fed. Reg. 19807 (May 9, 1979) ..............-. 16

US. *t of Labor, The Older Worker:

ion in Employment, Report of the

of Labor Under Section 715 of the

Civil Rights Act of 1964 (1965) ..............- passim

REGULATIONS AND ADVISORY OPINIONS

SEE bc dcdwcotbbdécSetetsiorecvceciés 16

ED <ticcecdededcbsgdeccetccceces 16

EEE: occ cseddcevecctcccocscesos 15

ED cig déccdddedcdcvcescvccees 15

EE cccccapesedséesdéccosieeees 16

EEE donc Kcccccdcccqevccscess 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

Pen eee Wada for Age Discrimination in a

Post-Hazen oh 75 (1999) ..27

Bruce J. Avolio & Gerald V. Barrett, “Effects of

Marc Bendick, Jr., Lauren E. Brown, & Kennington Wall,

“No Foot in the Door: An Experimental Study

yy samen oyment Discrimination Against

orkers,” 10(4) JOURNAL OF AGING

BOTA FURIE SCS OOD ccc cc ccscsccccccccccss 28

Marc Bendick, Jr., Charles W. Jackson, & J. Horacio Romero,

oyment Discrimination Against Older Workers:

An Experimental Study of Hiring Practices,” 8

(4) JOURNAL OF AGING & SOCIAL POLICY 25 (1996) .. 28

Robert N. Butler, “Dispelling Ageism: The Cross-Cutting

Intervention,” 503 ANNALS 138 (1989) ........ 29

Robert N. Butler, WHY SURVIVE?: |

BEING OLD IN AMERICA (1975) ..........--44) 23, 24

Howard Eglit, “The Age Discrimination in Employment

Act’s Forgotten ive Defense,” 66 BOSTON

EAT EEE. CEP ERSEED cccccccccesebdddbibecdoeces 24

Raymond F. Gregory, AGE DISCRIMINATION IN THE

AMERICAN WORKPLACE: OLD AT A YOUNG

REBSSED 406666600 cS S06 Heese db es beh over 27

Stan Hinden, Forced to Retire Before You're Ready

The Merge-and- ae Era’s Layoffs Hit Older

Workers

WASH. Post, June ‘ 1999 PTE OE Eee 29

Steven J. Kamenshine, “The Cost of Older Workers,

Disparate Impact, and the Age Discrimination in

oe oe

42 L. REV. 229 (1990) ...........-. 21, 22, 23, 26

Charles R. Lawrence, Ill, “Ego, and Equal Protection:

With Unconscious Racism,”

39 STAN. L. REV. 317 (1987) .............405. 25, 27

J. Levin and W.C. Levin, |

AGEISM: PREJUDICE AND DISCRIMINATION AGAINST

THE ELDERLY (1980) ............. ccc eeeeeees 27, 28

William C. Levin, “Age Stereotyping,”

10(1) RESEARCH ON AGING 134 (March 1988) ...... 28

Becca R. Levy, “Eradication of

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 , July 15, DE bs incedailnaealiadl 29

, “Negligent Discrimination,”

onal alee . 899 0 (1993) dobecbcbosesdeses 27

Erdman B. Palmore, Ageism:

Negative and Positive (1999) ............eeseeee: 25

Charles W. Perdue & Michael B. Gurtman,

“Evidence for the Automaticity of Ageism,”

26 JOURNAL OF EXPERIMENTAL SOCIAL

PSYCHOLOGY 199 (1990) ...........000eeeeee 25, 26

Deborah L. Rhode, “The ‘No-Problem’ Problem:

Feminist and Cultural Change,”

100 YALEL.J.1731 (1991) ....... ccc cece ee eeee 25

Benson Rosen & Thomas H. Jerdee, “The Nature of

Job-Related Age S

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) .

No. 01-584

IN THE

Supreme Court of the United States

WANDA ADAMS, LEO L. FLOYD, et al.,

Petitioners,

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

PEOPLz (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.

primary objectives is to achieve dignity and equality in the

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.

. ;

ee ee to AARP’s members.

More than 40 percent of ”s members remain active in the

work force. Most are 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 . 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

as amicus curiae in, among others, the cases of Reeves v.

Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000); 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, ag etme

the rights of older workers to be free from

Geebtdadiai, Ghaher Gn teemeinadanie, ane eee

origin, religion, or age. The statements of interest of these

Ee eee

Denying the disparate i method of proving

discrimination to its victims ether mrt ne Beg

insulate from challenge discriminating conduct which Congress

economy,

workers should be judged based on their abilities rather than

characteristics unrelated to their participation in the work force,

such as age. Since the of discrimination are

equally devastating regardless of the employer’s motivation or

the protected 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

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

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 = mead, claims. While the

court below concluded that 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 the unavailability of the

Those courts that have restricted ADEA plaintiffs to the

Gepeee tenement Roary of pooet have atteioatad to Congress

They have selectively misread the ADEA’s legislative history,

which, contrary to their conclusions, contains strong affirmative

impact theory to apply to the ADEA -- a result which Congress

never con

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.

Section (4)(a)(2) of the ADEA provides that “[ijt 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 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 “

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

in the enactment of Title VII is plain from the language of the

statute.” 401 U.S. at 429 (emphasis added). Accordingly, “[i}f

rot ete emman al tide Vit ht mee alenbe cheat i

te plan et tiad ADEA.” EEOC v. Governor Mifflin

. Supp. 734, 741 (D.C. Pa. 1985).

A. Since the ADEA and Title VII Share Common

Purposes and Identical Substantive Provisions, They

Should be Interpreted Similarly.

“The similarity in lan 2 gg i org of the

ADEA and § 703¢a)(2) of Ti . is, of course, a strong

indication that the two statutes my te 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 VIL, relying on much of Title VII's

actual language for its content.”).

¥ — 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...)

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

VI share “a common purpose: ‘the elimination of

discrimination in the workplace.”” McKennon v. Nashville

Banner Pub. Co., 513 U.S. 352, 358 og ing Oscar

Mayer & Co. v. Evans, 441 U.S. 750, 7 (1979). In

Northcross v. Memphis Bd. of Educ., 412 U.S. at 428, the Court

scasened Git SANS eS

passu . ee ee “the two

share a common raison ” (citing Johnson v. s.471

F.2d 84, 86 (Sth Cir. 1972)).

Well As Intentional Age Discrimination.

The ADEA’s substantive prohibitions, which were based

— on those in Title VII, state in pertinent part, that it is

any individual or otherwise dacriainate against any

discharge any indivi or otherwise discriminate 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 “[tJhe most obvious

ae oe San ee s age,’ is that

ibits an employer from pour + by —_ Le

tly based on his or her age.” 73 F.3d 999, 1007 (10th

Cin), cert. denied, 517 U.S. 1245 (1996). See also Mullin v.

Raytheon, Co., 164 F.3d 696, 700 (ist Cir.), cert. denied, 528

US. 811 (1999) (“A commonsense reading of [‘because of

such individual’s age’] strongly that the statute

includes a requirement of intentional ”).

¥ (...continued)

the phrase ‘because of’ to permit disparate impact

analysis, that the phrase codifies the requirement of

a causal between the protected trait and the

every

matter what the method of proof.” Fentonmiller, at 1121.

C. The Civil Act of 1991 Did Not Affect the

Viability of 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 adverscly 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, a hee pee

that in failing to add a parallel provision to the ADEA when it

need Gee ee oe (CRA),* Congress

“signal[ed its intent not to provide for

tudmustnae alan 73 F.3d at | The CRA aed

a provision to Title VII to define the burden of proof

disparate impact case. tinue > aval apenas

pact analysis inthe when it enacted the CRA does

As fully sbiatunsenaiien, 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 VII fails to state explicitly

that employment resulting

unjustified disparate impert is unlawful; the CRA

punctious tat ee fnirin fem, bat doesioninntery ts

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

Y Pub. L. No. 102-166, 105 Stat. 1071 (1991).

circumstances, the Court has cautioned that ‘[iJt is

at best treacherous to find in congressional silence alone the

of a ing rule of law."” NLRB v. Plasterers’

adoption

Local Union No 79, 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), Schneidewind

v. ANR Pipeline Co., 485 U.S. 293, (1988) (“This Court

generally is reluctant to draw inferences from Congress’ failure

to act.”). See also Johnson v. Santa Clara , 480

U.S. 616, 629 (1987) (Scalia, J., dissenting) (“any reliance on

101 to act is necessarily a ‘canard.’”)

(emphasis in original)

I. THE ADEA’S LEGISLATIVE HISTORY

DEMONSTRATES CONGRESS’ INTENT TO

REDRESS ALL FORMS OF “ARBITRARY” AGE

INCLUDING NEUTRAL POLICIES AND

PRACTICES WITH A DISPARATE IMPACT ON

OLDER WORKERS. |

ite the strong textual similarity between the ADEA and

theory under the ey tn es

and in particular, to a Report by U.S. Labor Secretary W.

Willard Wirtz,” on which drew in crafting the

ADEA. See, ¢.g., Adams v. Power Reon 3d

at 1325; see also Respondent's Brief in . at 14 (asserting

of Wirtz ). Accord Hepes Paper Co. v.

Biggins, 507 U.S. 604, 610 (1993).

ne ee Pen

disparate impact i was necessarily because only a

ceamnnt cm wa befor the Cour See 507 US.

at 610. However, no such exists for the superficial

analyses of the ADEA’s i in Adams and other

appellate decisions Dy mo em Pe

disparate impact theory. A fresh analysis Court is now

warranted. Its conclusions be harmonized with the

diverse and evidence disparate impact

claims under the ADEA, i * determination to

including

outlaw all age discrimination shown to be “arbitrary,” whether

in its intent or its effects.

A. The ADEA’s History Demonstrates Congress’

Fall More Harshly on Older Workers and Do Not

Meet Genuine Employer Needs. pris

In EEOC v. Wyoming, the Court recounted the ADEA’ early

legislative history, incteding wnccnsummmated efforts 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).

Rights Act. 460 U.S. 226, 229, 230-32 (1983).¢ The Wirtz

The Wirtz Report's lt sal

extensive factfinding BUS. 23051, Congress

Congress.” EEOC v. Wyoming, 460 U.S. at 230-31.

sete the Secretary Yo mbt pci leave proper

for prohibiting age discrimination”; these were

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 |

ee ” Id. at

231. on thee om ns tage

eng hy = Pt : or a

a ae sy rte Ga a prohibit

employers and workers find way of meng

impact of age on employment. S.C. § 5 o21ey

The ADEA’s focus on discrimination

operate

impermissible classification.” 401 U.S. at 431 (emphasis

bias: “. . . The Secretary of Labor ae me

prevent arbitrary discrimination in employment because of

as he determines advisable.” JA 354. (emphasis added). -

and 2.2. 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.

In the Wirtz Report “arbitrary discrimination imi ” is identified

as the “kind [of bias] which might be dealt with by a statute

ibiting discrimination in employment on the basis of age.”

A 398. The Secretary also described “arbitrary

discrimination” as the conduct most comparable to

iscriminatic banned by the 1967 Civil Rights’ Act

Specifically, “arbitrary discrimination” was defined as the

” or “rejection” of older workers “because of

assumptions about the of age on their ability to do a

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.

The logic of Wirtz’ concern is clear: in a U.S. labor market

where educational attainment sent imagen) care may

ee JA 359. In similar fashion, the Wirtz I

effects of “aptitude and other entrance tests” on

experiences

ag ao ap aa ~

showing of younger, better-educated

workers on tests in which performance is affected

by recency of education and testing experience.

though such criteria might be founded faith

anaes o JA 358-59, rather than he. By

such age-neutral bias as “arbitrary,” the

discrimination. In particular, Secretary Wirtz opined that

“(t]he practice of generalizing personnel hiring policy by

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 discrimination 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 opportunities 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 Department of Labor promulgated interpretative

regulations, see 29 C.F.R. Part 860 (1968), within days after the

ADEA went into effect. Second, in the months following the

ADEA’ s enactment, the Department began issuing interpretive

opinion letters. Both sources strongly reaffirmed language in

the Report to the effect that the ADEA was intended to ban

age-neutral, non-job-related, employment practices with

adverse disparate impact on older workers.

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)

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.¢., strength, speed, dexterity, quantity of work) were

employers’ most frequently mentioned consideration for restrictions 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.

2 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

ee at 14, Wirtz Report at 3 [JA 358-

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).

1V 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).

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

dces have or does not have the capacity to do whatever job it is

12’ 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).

that that individual is seeking.” 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 disparate impact.”

The Adams court’s oversimplified rendering of the Wirtz

Report ignores numerous instances in which the Report

condemns as “arbitrary” and called for the elimination 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.”

discrimination” corresponds only with “disparate treatment

based on stereotypical perceptions of the elderly,” or that all

other “factors affecting older workers, such as policies with

disparate impact, should be addressed in alternative ways.” 255

F.3d at 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 (quoting 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

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);

— v. 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

necessary to combat “the problem of subconscious stereotypes

and prejudices,” 487 U.S. 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

” 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).

610% the disparate impact theory must be available to attack

the serious problem of age discrimination in the work place.”

Much of the confusion appears to arise from the Court’s

comment in Hazen Paper that “[djisparate treatment .. .

captures the essence of what Congress sought to prohibit in the

ADEA,” 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

inescapable implication of [Justice O’Connor’s] statements is

that the imposition of disparate impact liability would not

address the evils that Con 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

1¥ 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.”’).

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 FLA. 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.

1¥ 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, ¢.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.”) /d. at 1142 (emphasis added).

A. Stereotyping Is Often Unintentional.

_ Simce actions based on stereotypes are not necessarily

intentional,” it is erroneous to conclude that because

inaccurate stereotypes are often behind age discrimination the

Se ene, Astenetans

sateen a % ad + nl yk

impact is particularly

eet ay discrimination caused by unintentional

stereotyping. all, the premise of the disparate impact

theory is that “not all discrimination is apparent and overt. It

Fe a mene eg mee ee It is at times hidden even from

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

hteey & ts AMA be contest Gn aah on On

nature and causes of ageism.

1 =“ 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:

a@ 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...)

Age distinctions are particularly unique because

they so often are used thoughtlessly rather than as

intentional expressions of invidious malice or even

mildly bigoted intent. Age discrimination .

typically results from employers’ ignorance about

older workers, rather than active dislike of them.

Because of this relatively innocuous nature of

Howard Eglit, “The Age Discrimination in oyment Act’s

Affirmative Defense,” 66 BOSTON LAW REV. 155,

222 (1986).

Recent research has focused on this unconscious

discrimination, also called “implicit ageism.” ““{Timplieit

’ is defined as the thoughts, feelings, and behaviors

toward elderly people that exist and without conscious

awareness or control, with the assumption that it forms the

basis of most interactions with older individuals. ee

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

has been into our implicit personality

theories or sotial schemata and is evolied without

awareness On Our part.

2 (continued)

subtly cease to identify with their elders as human

beings.

Id. at 12.

Charles W. Perdue & Michael B. Gurtman, “Evidence for the

Automaticity of ” 26 JOURNAL OF EXPERIMENTAL

SOCIAL PSYCHOLOGY 199, 201 (1990). Unconscious is

pervasive in our society. “Ageism permeates our culture so

) a ES Ce GEES Ga SURED 08

most of us are unaware of most of the ageism in it.”

Erdman B Palmore, AGEISM: NEGATIVE AND POSITIVE 98 (2d

1999)

Unconscious discrimination is not unique to age

discrimination. Like ageism, “[rJacism is in large a

product of the unconscious. It is a set of beliefs w we

irrationally attach significance to something called race. . . .”

Charles R. Lawrence, Il, “The Id, the Ego, and Equal

Protection: With Unconscious Racism,” 33 STAN.

L. REV. 317, 330 (1987). However, “[a] survey of implicit

pte gg ee my ay an. web ta

of old people . - proportion than for implicit racism

or sexism.” Loanel 78.

B. Impact is the Most Effective Tool for

Discrimination Based on Stereotypes.

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 wane lotag ot 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.’”’) ( pummationsl Reand ef Gomme

quoting

v. United States, 431 U.S. 324, 339-40 n.20 (1977)). Indeed,

well hidden. See Albemarle Paper Co. v. Moody, 422 U.S.

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.

workplace practice with lesser discriminatory impact is

evidence that the challenged ice was merely a “pretext” for

Ciecrianination); 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 of age has been

automatically triggered by a person's older age, they are likely

to attribute their behaviors (e.g., failure to hire. . . ), to another

factor that better fits their hm ate 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’ unhealthy may help to rationalize

discriminatory practices in employment ... .”). As one

commentator observed with regard to the same phenomencn in

the context of race discrimination:

When racism operates at a conscious level,

opposing forces can attempt to prevail upon the

rationality and moral sensibility of racism’s

proponents . . .. But when the discriminator is not

aware of his prejudice . . . neither reason nor mora!

persuasion is likely to succeed. The defect

is all the more intractable, and judicial scrutiny

becomes imperative.

2/ 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).

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, national origin, or sex. “People are

more conscious of these latter biases but often are unaware of

their age bias. Age stereotypes persist because people tend not

to examine the basis for these stereotypes and also give

disproportionate weight to any data they believe tend to support

them.” Raymond F. Gregory, AGE DISCRIMINATION IN THE

AMERICAN WORKPLACE: AT A 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 s away.” Roberta Sue Alexander,

“Comment: The Future of Disparate Impact Analysis 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, with the requisite proof of conscious

discriminatory purpose, indivi discrimination claims will

not be able to address the issue of unconscious prejudice and

the “essence” of discrimination will be insulated from

challenge. Indeed, if as this Court suggested age discrimination

is most often caused by stereotypes, then “a theory that tests

only for intentional discrimination necessarily misses its mark

much of the time.” David Benjamin Oppenheimer, “Negligent

Discrimination,” 141 U. PENN L. REV. 899, 903-04 (1993).

The end result is a “status quo” of age bias based on

unconscious stereotyping. research on age s ing

suggests that we have already reached such a “status quo.”

Such 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: PREFUDICE AND DISCRIMINATION

(continued...)

research on age stereotyping in employment has consistently

found that older employees are alinost always treated and rated

less favorably than younger employees.

for discardin disparate impact theory under the ADEA. As

this Court itself has “We have not limited this

unlawful even in the absence of discriminatory intent] to cases

in which the challenged practice served to perpetuate the effects

of pro Act intentional discrimination.” Watson, 487 U.S. at

988.

ay (...continued)

AGAINST THE ELDERLY 70-96 (1980).

#4 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 POLICY 5 (1999); Marc Bendick, Jr., Charles W. Jackson, & J.

Horacio Romero, “Employment Discrimination Against Older Workers: An

Experimental Study of Hiring Practices,” 8(4) JOURNAL OF 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. Jerres, “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).

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 ion

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 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 remedial measures in [the

2V 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.

2/ — Robert N. Butler, “Dispelling Ageism: The Cross-Cutting

Intervention,” 503 THE ANNALS 138, 140 (1989).

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

For the foregoing reasons, amici curiae y submit

that the judgment of the United States Court o Appeals for the

Eleventh Circuit should be reversed. Amici urge this Court to

rule that the disparate impact theory of proof is applicable to

the ADEA.

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 j * . > * \

The National Association for the Advancement of

Colored People (NAACP), established in 1909, is the nation’s

eee eine aan mga It has state and local affiliates

ae 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

appeared 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 mi

enforcement system. NCLR believes that the proper use of the

ape pte or eeepc a Hispanics,

older workers, and other covered by Title VII of the

Civil Rights Act and ws prohibiting employment

discrimination, from bias in the workplace.

protect

freedoms, particularly the civil rights and liberties of American

Jews and all Americans. Since Jews in America are an agi

population, the American Jewish Congress is

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

inistering 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

acngree, semen sone nee Se 1971 as

the Women’s Legal i

‘quality bealth care, and policies that help women

for women, quality health care, and polici women

and men meet both work and family ibilities. The

National Partnership has devoted signi t 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 t.

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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.