# Amicus Curiae Brief — Adams v. Florida Power Corp.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0510%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 228

## Text

(1) Supreme Court US.
FILED

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

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

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

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

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

iv

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

Vv

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

vi

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 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.

10

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’
Se
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).

11
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). -

© Efforts at the federal level “date back at least to the 1950s,” Id. at 229
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.

12

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.

13

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

14

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)

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.¢., 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-
].

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).

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).

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
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).

18

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.”

19

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

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);
— 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).

21

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.”’).

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 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).

23
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...)

24

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.

25

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.

26

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).

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, 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...)

28

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).

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 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).

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

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

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0510%3A18. Public record. Not legal advice.