Amicus Curiae Brief — Smith v. City of Jackson

FILED |

| AUG 19 2004

OF FIct OF THE CLERK

ah

No. 03-1160

In the

Supreme Court of the Unitcda States

+

ADEL P. SMITH, et al.,

Petitioners,

Vv.

CITY OF JACKSON, MISSISSIPPI, et al.,

Respondent.

-

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

—+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF RESPONDENT

+

JOHN H. FINDLEY

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........2ccccccceeees ili

IDENTITY AND INTEREST OF AMICUS CURIAE .... 1

STATEMENT OF THE CASE ...........eeeeeeeeees l

SUMMARY OF ARGUMENT ...........-00e eee eeee 2

REIS 6 i bb ce eedscddccctvcedsccvesessscecses 3

I. CONGRESS DID NOT INTEND

TO CREATE DISPARATE IMPACT

LIABILITY UNDER THE ADEA ............... 3

A. The Plain Wording of ADEA

Encompasses Only Disparate Treatment....... 3

B. Disparate Impact Liability

Was Developed to Combat

Intentional Discrimination;

Mere Statistical Disparity Does

Not Constitute Discrimination .............. 5

C. The Sole Rationale for Disparate Impact

Is Preventing Pretexts for Discrimination ...... 8

Il. THE COURTS AND ADMINISTRATIVE

AGENCIES, NOT CONGRESS, HAVE

EXTENDED DISPARATE IMPACT

ANALYSIS TO OTHER LAWS ..........-+-+. 11

A. Administrative Agencies Have

Sought to Expand the Scope of |

Disparate Impact Analysis to Other Laws ..... 11

B. Congress Has Limited

Disparate Impact Liability ..............++- 12

ii ill

Ill. RECOGNIZING THE FLAWS OF TABLE OF AUTHORITIES

DISPARATE IMPACT, THIS COURT Page

HAS LIMITED ITS APPLICATION ............ 14 —

IV. SOUND PUBLIC POLICY REASONS Adams v. Florida Power Corporation,

REJECT EXPANSION OF DISPARATE

IMPACT LIABILITY TOTHE ADEA .......... 17 $35 US. ZB GREED occccccccececcesscusceneeeus |

A. Disparate Impact Liability Is Based on “— typ oi Rha 9

Unauthorized Administrative Regulations .... 17 | Se a

Alexander v. Sandoval

B. Disparate Impact Liability ;

Raises the Specter of Quotas ............... 29 $32 UB. FIS GREED cccccccecccasseuceees 12, 19-20

Connecticut v. Teal,

PT £0645660n need beveceevescudusesl 22 ry his © | Ee 10

County of Washington v. Gunther,

452 UD. 363 CRGBED .cccccccccccuccecsssosaeuees 7

Cureton v. NCAA,

198 P.36 107 GO Cas. BGGBD .cccccccuccccccceseses l

EEOC vy. Arabian American Oil Co.,

49D UB. DOOD co cccccccccccecoscetesssctes 17

Griggs v. Duke Power Co.,

401 UB. GROGISFED ccccccccccsccccccusnnaes 5-7,9

Hazen Paper Company v. Biggins,

S07 UB. GRO CIREED cccccecccccectcccqscessees 3-5

Landgraf v. USI Film Products,

$11 UB. DOOCIOS cccccccccesncscecctessceune 13

Lau v. Nichols, 414 U.S. 563 (1974) ........600065 11-12

Lewis v. Casey, 518 U.S. 343 (1996) ... 2... 6 eee eee 15-17

Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307 (1976)... 2. cece eee eens 8

New York Transit Authority v. Beazer,

040 US. SEB CIOTED on cccccccccescccccecessedese 9

iv

TABLE OF AUTHORITIES—Continued

Page

Personnel Administrator of Massachusetts

v. Feeney, 442 U.S. 256 (1979) ............00 cece 15

Smith v. City of Jackson,

Be Wane Oe a SUED oc cc cccccccccccécecces 2

Solid Waste Agency of Northern Cook

County v. United States Army Corps

of Engineers, 531 U.S. 159 (2001) ............. 18-19

Village of Arlington Heights v. Metro Housing

Development Corp.,429 U.S. 252 (1977) ........ 14-15

Wards Cove Packing Co., Inc. v. Atonio,

I i 8-9

Washington v. Davis,

I i 14-16

Watson v. Fort Worth Bank and Trust,

Gy Ge OUP ED cccccccccccccccccsece 10, 20-21

Federal Statutes

Et ee ee 7

i no. rn kb eden deans cebeedees 2-3

EE a ene ea ae 7

SE ae 3

I a se ew aken 19

a 13

DT uadévdcdouecddueddntauesececéoce 11

ER a ia ea Ny ee ee 6

Vv

TABLE OF AUTHORITIES—C ontinued

Page

DPIBOED cc cccccccccccsccccsccccscsccescces 13

DRS oc cdcvececencdecccvicneccscccscecece 13

SS PPrTTTTT TTT TTT TTT Tt. 18

Pub. L. No. 102-166, 105 Stat. 1071 ............-555- 12

Federal Regulations

DOPR. GIRS cccccccccscccccccccccccesees 18

29 CF.R. § 1625.7 (1981) ... 2. cc wcccccccccccccees 17

43 Fed. Reg. 19807 (1979) ..... 2.0... e eee cece eee e eee 18

Legislative Material

110 Cong. Rec. 7212 (1964) .......... cece e ee eeee 6

Miscellaneous

Herbert, Douglas C. and Shelton, Lani Schweiker,

A Pragmatic Argument Against Applying the

Di I Doctrine in Age Discriminati

Cases, 37 S. Tex. L. Rev. 625 (1996) ............+- 18

Krop, Pamela S., Age Discrimination and the Disparate

Impact Doctrine, 34 Stan. L. Rev. 837 (1982) ...... 6, 8

U.S. Dept. of Labor, The Older American Worker: Age

Discrimination in Employment (1965) ...........-++++: 8

IDENTITY AND INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation respectfully submits this brief amicus curiae in

support of Respondent City of Jackson. All parties consented

to the filing of this brief and their letters of consent have been

lodged with the Clerk of this Court.’

Pacific Legal Foundation (PLF) is a nonprofit, tax-exempt

corporation organized under the laws of the State of California

for the purpose of engaging in litigation in matters affecting the

public interest. PLF considers this case to be significant in that

it concerns the scope of disparate impact, a doctrine that is often

counterproductive to the public interest. PLF has filed amicus

briefs addressing the inequities of disparate impact analysis in

Adams v. Florida Power Corporation, 535 U.S. 228 (2002),

and Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999).

STATEMENT OF THE CASE

This Court granted certiorari to determine the following

question.

Whether disparate impact claims are cognizable under the

Age Discrimination in Employment Act?

The facts of this case are simply stated. In order to bring

starting salaries up to the regional average, the City of Jackson

adopted a pay plan that granted proportionately larger pay

increases to police officers with less than five years tenure.

Thirty officers and dispatchers, all over the age of forty, sued

Pursuant to Supreme Court Rule 37.6, Amicus affirms that no

counsel for any party in this case authored this brief in whole or in

part; and furthermore, that no person or entity has made a monetary

contribution specifically for the preparation or submission of this

brief.

the City alleging that it had discriminated against them because

of their age in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et seq.

The United States District Court for the District of Mississippi

granted suimmary judgment to the City. Smith v. City of

Jackson, 351 F.3d 183, 185 (Sth Cir. 2003). On appeal, the

Fifth Circuit affirmed that the ADEA was not intended to

remedy age “isparate effects that arise from employment

policies that are not based on age. Jd. at 187. This Court

SUMMARY OF ARGUMENT

The wording of the ADEA shows Congress intended to

address only intentional discrimination on the basis of age and

not policies or acts that merely have a disparate impact. This

Court developed disparate impact analysis to combat the

vestiges of intentional discrimination and not mere statistical

disparities.

It has been administrative agencies and the courts that

created disparate impact liability. Congress has only sought to

limits its application. This Court has also sought to limit

disparate impact liability by requiring proof of intentional

discrimination in Equal Protection Clause cases.

Public policy considerations counsel against any

expansion of disparate impact analysis. Disparate impact

liability in the ADEA is based on administrative regulations

that contravene the intent of Congress. Requiring proportional

impact leads to implementation of quota systems that are the

antithesis of congressional policy in enacting the ADEA. The

decision below should be affirmed.

ARGUMENT

I

CONGRESS DID NOT INTEND

TO CREATE DISPARATE

IMPACT LIABILITY UNDER THE ADEA

A. The Plain Wording of ADEA

Encompasses Only Disparate Treatment

The ADEA, 29 U.S.C. § 621, et seq., provides in pertinent

part:

(a) It shall be unlawful for an employer—

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

individual or otherwise discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s age... .

(f) It shall not be unlawful for an employer... .

(1) to take any action otherwise prohibited under

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

where the differentiation is based on reasonable

factors other than age ....

29 U.S.C. § 623.

The issue is whether this language imposes disparate

impact liability. This Court noted in Hazen Paper Co: v.

Biggins, 507 U.S. 604 (1993), that it has long “distinguished

between ‘disparate treatment’ and ‘disparate impact’ theories of

employment discrimination.” Jd. at 609.

Disparate treatment . . . is the most easily understood

type of discrimination. The employer simply treats

some people less favorably than others because of

their race, color, religion [or other protected

characteristics.] Proof of discriminatory motive is

critical, although it can in some situations be inferred

from the mere fact of differences in treatment.

Claims that stress disparate impact [by contrast]

involve employment practices that are facially -

neutral in their treatment of different groups but that

in fact fall more harshly on one group than another

and cannot be justified by business necessity. Proof

of discriminatory motive . . . is not required under a

disparate impact theory.

Id. (internal quotation marks omitted).

The language of the ADEA makes clear that the disparate

treatment theory is available under the ADEA. /d. “In a

disparate treatment case, liability depends on whether the

protected trait (under the ADEA, age) actually motivated the

employer's decision.” Jd. at 610. As this Court explained:

Disparate treatment, thus defined, captures the

essence of what Congress sought to prohibit in the

ADEA. It is the very essence of age discrimination

for an older employee to be fired because the

employer believes that productivity and competence

decline with old age.

Id.

While this Court specifically stated that it was not

deciding whether a disparate impact theory of liability is

available under the ADEA, id. at 610, its language in Hazen

Paper strongly suggests that the answer is no. This Court

declared:

Thus the ADEA commands that “employers are to

evaluate [older] employees . . . on their merits and

not their age.” The employer cannot rely on age as

a proxy for an employee’s remaining characteristics,

such as productivity, but must instead focus on those

factors directly.

Id. at 611 (citation omitted).

The Court explained: “When the employer’s decision is

wholly motivated by factors other than age, the problem of

inaccurate and stigmatizing stereotypes disappears. This is true

even if the motivating factor is correlated with age, as pension

status typically is.” Jd. The essence of the disparate impact

theory is the correlation of a facially neutral factor with the

protected status. Thus, the mere fact that conduct motivated

wholly by factors other than age falls more heavily on the

protected age group does not give rise to an ADEA violation.

As this Court explained, ADEA “requires the employer to

ignore an employee’s age (absent a statutory exemption or

defense); it does not specify further characteristics that an

employer must also ignore.” Jd. at 612.

B. Disparate Impact Liability Was

Developed to Combat Intentional

Discrimination; Mere Statistical

Disparity Does Not Constitute Discrimination

The doctrine of “disparate impact” saw its initial

application in Griggs v. Duke Power Co., 401 U.S. 424 (1971 ).

There, this Court ruled that an employer’s requirement that job

applicants have completed high school and pass a general

intelligence test discriminated against blacks in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et

seq. (prohibiting employment discrimination on the basis of

race, color, religion, sex, or national origin),’ because it

excluded a higher proportion of blacks than whites and was not

demonstrably related to actual ability to do the work. Griggs,

401 U.S. at 431-32. The ruling in Griggs was clearly

influenced by the fact that the employer had a history of overt

racial discrimination which had apparently ceased after the

enactment of the Civil Rights Act of 1964, although the

employer continued to follow policies that had a markedly

disproportionate effect on blacks. Jd. at 428-29. The actuality

of intentional discrimination was shown by the fact that Duke

Power adopted the new requirements on the day that Title VII

went into effect and specified that it would not apply to white

employees already hired. Jd. at 427. These facts suggest the

employer was using facially neutral criteria as a proxy for racial

discrimination.

Griggs created the following standard: “The [Civil

Rights] Act proscribes not only overt discrimination but also

practices that are fair in form, but discriminatory in operation

. If an employment practice which operates to exclude

* As pointed out in Pamela S. Krop, Age Discrimination and the

Disparate Impact Doctrine, 34 Stan. L. Rev. 837, 844 (1982) (Krop),

the legislative history of Title VII indicates that Congress did not

originally intend to authorize disparate impact claims, citing the

interpretive memorandum by its floor managers, Senators Clark and

Case, in the Congressional Record. That memorandum specifies that

the Act only prohibits practices by which an employer segregates or

classifies employees “on the basis of” race, religion, sex or national

origin. 110 Cong. Rec. 7212 (1964). Krop reasons that if Congress

did not intend Title VII to encompass disparate impact claims, it

similarly did not intend to include them in the ADEA. 34 Stan. L.

Rev. at 844.

[minorities] cannot be shown to be related to job performance,

the practice is prohibited.” Jd. at 431.

Although Griggs expanded the reach of Title VII to

include disparate impact, it attempted to limit the measure’s

scope:

Congress did not intend by Title VII, however, to

guarantee a job to every person regardless of

qualifications. In short, the Act does not command

that any person be hired simply because he was

formerly the subject of discrimination, or because he

is a member of a minority group. Discriminatory

preference for any group, minority or majority, is

precisely and only what Congress has proscribed.

What is required by Congress is the removal of

artificial, arbitrary, and unnecessary barriers to

employment when the barriers operate invidiously to

discriminate on the basis of racial or other

impermissible classification.

Id. at 430-31.

The scope of the ADEA is even more limited. Section

4(f)(1), 29 U.S.C. § 621(f)(1), permits an employer to take any

action otherwise prohibited under the ADEA “where the

differentiation is based on reasonable factors other than age.”

Id. There is no similar provision in Title VII. However, a

similar provision in the Equal Pay Act, 29 U.S.C. § 206(d)(1),

exempts pay differentials “based on any other factor other than

sex.” In County of Washington v. Gunther, 452 U.S. 161

(1981), this Court found that this language was inconsistent

with disparate impact liability and indicated the intent of

Congress to limit Equal Pay claims to disparate treatment. Id.

at 170. The “reasonable factors other than age” proviso in the

ADEA similarly evidences congressional intent to limit the

ADEA to disparate treatment claims.

This fact is buttressed by the legislative history of the

ADEA, which was enacted following the presentation of a

Secretary of Labor report regarding problems of older workers.

As Krop notes, “(t]he Secretary found no evidence of prejudice

against older workers and concluded that the main problem was

arbitrary age discrimination based on misconceptions about the

abilities of older workers.” 34 Stan. L. Rev. at 853 (citing U.S.

Dept. of Labor, The Older American Worker: Age

Discrimination in Employment at 2 (1965)).

| Further, the type of discrimination faced by older workers

is significantly different from that based on race, sex, or

nationality. Not only have older workers not suffered from

lifelong discrimination, but the discrimination they face is not

a product of invidious stereotypes and hatred. See Krop, 34

Stan. L. Rev. at 852. That commentator, id., cites

Massachusetts Board of Retirement v. Murgia, 427 U.S. 307,

313 (1976), for its holding that unlike those who have been

discriminated against on the basis of race, the aged have not

historically experienced purposeful unequal treatment or been

subjected to disabilities on the basis of stereotypes.

C. The Sole Rationale for Disparate Impact

Is Preventing Pretexts for Discrimination

The only legitimate purpose behind the development of

the disparate impact theory would be to prevent the use of

facially neutral standards as a pretext for racial discrimination,

not to require race quotas. This was made clear in Wards Cove

Packing Co., Inc. v. Atonio, 490 U.S. 642 (1989):

The touchstone of this inquiry is a reasoned review

of the employer’s justification for his use of the

challenged practice. A mere insubstantial

justification in this regard will not suffice, because

such a low standard of review would permit

discrimination to be practiced through the use of

spurious, seemingly neutral employment practices.

Id. at 659 (emphasis added).

The Court reemphasized this point in noting that plaintiffs

could show that other selection devices without a similarly

undesirable impact would also serve the defendant’s legitimate

interests. By such a-showing, the plaintiffs “would prove that

(defendant was] ‘using [its] tests merely as a “pretext” for

discrimination.’ ” Id. at 660 (emphasis added). The Court thus

suggested that the disparate impact doctrine was intended to

address pretexts for discrimination, not mere numerical

disparities.

However, the Court has not been consistent in stating that

disparate impact is merely the manifestation of pretextual

discrimination. Griggs, 401 U.S. at 432, found that a plaintiff

need not necessarily prove intentional discrimination in order

to establish that an employer had violated the statute. Yet, in

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Court

stated that a showing that other tests or selection devices were

available that served the employer’s legitimate business needs

but did not have an undesirable racial effect would be evidence

that the employer was using its tests as a pretext for

discrimination. Jd. at 425. Albemarle was followed by New

York Transit Authority v. Beazer, 440 U.S. 568 (1979), which

rejected a claim that an employer’s strict drug abuse

enforcement policy had a disparate impact on minorities. The

Court ruled that the trial court’s finding that the policy was not

motivated by racial animus “forecloses any claim . . . that it

was merely a pretext for intentional discriminacon.” Jd. at 587.

Next, Connecticut v. Teal, 457 U.S. 440 (1982), in

rejecting the so-called “bottom line” defense of racial

proportionality in the workforce’ for disparate impact cases,

declared that, even if the employer shows the job relatedness of

a test, “the plaintiff may prevail if he shows that the employer

was using the practice as a mere pretext for discrimination.” Jd.

at 447. Watson v. Fort Worth Bank and Trust, 487 U.S. 977

(1988), cited factors such as the cost of proposed alternative

employee selection devices as “relevant in determining whether

the challenged practice has operated as the functional

equivalent of a pretext for discriminatory treatment.” Jd. at 998.

On the other hand, Watson also stated that “the necessary

premise of the disparate impact approach is that some

employment practices, adopted without a deliberately

discriminatory motive, may in operation be functionally

equivalent to intentional discrimination.” Jd. at 987. It would

thus appear that the Court has not been able to decide on the

precise rationale behind the disparate impact doctrine.

However, since the purpose of civil rights laws is to preclude

intentional discrimination, the only proper basis for disparate

impact analysis is when the challenged policies or acts are

pretexts for discrimination.

* The bottom line defense argued that if an employer achieved racial

proportionality in its workforce, it did not matter if any employment

or promotion practice was racially biased. Jd. at 442.

10

OLE I oe mm

-

THE COURTS AND

ADMINISTRATIVE AGENCIES, NOT

CONGRESS, HAVE EXTENDED DISPARATE

IMPACT ANALYSIS TO OTHER LAWS

A. Administrative Agencies Have

Sought to Expand the Scope of

Disparate Impact Analysis to Other Laws

The disparate impact doctrine was extended to Title VI of

the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., in Lau

v. Nichols. 414 U.S. 563 (1974). There, nonEnglish-speaking

students of Chinese ancestry sued San Francisco school

officials alleging that the school district’s failure to provide

equal educational opportunities violated the Fourteenth

Amendment and Title VI. Jd. at 566. The Court did not reach

the Equal Protection Clause argument but instead relied solely

on Section 601 of Title VI. Jd. Although the Court did not use

the term “disparate impact,” it cited Department of Health,

Education & Welfare (HEW) regulations‘ issued pursuant to

Section 602 that barred acts that have the effect of

discrimination, even though there is no purposeful design to

discriminate. Jd. at 568.

The concurring opinion of Justice Stewart, joined by the

Chief Justice and Justice Blackmun, raised a fundamental issue:

“The critical question is . . . whether the regulations and

guidelines promulgated by HEW go beyond the authority of

§ 601.” The concurrence noted that the validity of 4 regulation

promulgated under a general authorization provision such as

. The Court also took note of HEW guidelines that required

federally funded school districts to rectify students’ language

deficiencies. Jd. at 566-67.

11

Section 602 of Title VI “will be sustained so long as it is

‘reasonably related to the purposes of the enabling legislation.’”

Id. at 571 (footnote omitted).

This rationale was rejected by Alexander v. Sandoval, 532

U.S. 275 (2001), which found that Lau interpreted Section 601

itself to prohibit disparate impact discrimination. Jd. at 285.

The Court then noted it

must face now the question avoided by Lau, because

we have since rejected Lau’s interpretation of § 601

as reaching beyond intentional discrimination. ... It

is clear now that the disparate-impact regulations do

not simply apply § 601—since they indeed forbid

conduct that § 601 permits—and therefore clear that

the private right of action to enforce § 601 does not

include a private right to enforce these regulations.

Id.

Although phrased in terms of the private right of action

issue, this recognition that disparate impact regulations forbid

conduct permitted by statute signals that where Congress has

not authorized disparate impact liability, it may not be created

out of whole cloth by administrative fiat.

B. Congress Has Limited Disparate Impact

Liability

Although Congress has acknowledged the courts’

imposition of disparate impact analysis on the statutory scheme

of Title VII, it has shown its discomfort with the concept by

moving to limit its application. The Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1071, for the first time expressly

stated that the disparate impact theory applies in Title VII. See,

e.g., Section 4, 42 U.S.C. § 2000e-2. And while the Act

purported to “respond to the Supreme Court’s recent decisions

12

ee eee ae

by restoring the civil rights protections that were dramatically

“limited by those decisions,” Section 2.b, the Act contained

substantial limitations on disparate impact liability. Thus

Section 102, adding section 1977A, 42 U.S.C. § 1981, provided

for damages in actions brought under sections 706 or 717 of the

1964 Civil Rights Act in cases of intentional discrimination but

specifically excluding “an employment practice that is unlawful

because of its disparate impact.”

In Section 106 of the 1991 Act, Congress further restricted

the use of disparate impact analysis in test scores through the

enactment of Section 703(1), entitled “Prohibition of

Discriminatory Use of Test Scores”:

It shall be an unlawful employment practice for a

respondent, in connection with the selection or

referral of applicants or candidates for employment

or promotion, to adjust the scores of, use different

cutoff scores for, or otherwise alter the results of,

employment related tests on the basis of race, color,

religion, sex, or national origin.

42 U.S.C. § 2000e-2(/). Thus even though cutoff scores, for

example, may have a disparate impact on the basis of race or

sex, employers are prohibited by Section 703(/) from adjusting

those scores to achieve a more proportional result.

Congress also limited the use of disparate impact analysis

by prohibiting the award of punitive damages in such cases.

Thus, an action brought under Section 706, 42 U.S.C. § 2000e-

5, of the Civil Rights Act, may recover compensatory and

punitive damages by alleging unlawful intentional

discrimination but not where the charge is only one of disparate

impact. Landgraf v. USI Film Products, 511 U.S. 244, 252

(1994).

13

These provisions show that while Congress has acceded to

this Court’s imposition of disparate impact liability in Title VII,

it has limited its application. More relevant here, there is no

indication that Congress ever intended to permit expansion of

the doctrine beyond Title VII to other laws such as the ADEA.

Ill

RECOGNIZING THE FLAWS

OF DISPARATE IMPACT, THIS

COURT HAS LIMITED ITS APPLICATION

Although this Court has recognized the concept of

disparate impact liability, it has been uneasy with its application

~ and has often sought to limit it. In Washington v. Davis, 426

U.S. 229 (1976), black applicants for a police training program

sued under the Equal Protection Clause alleging that the failure

rate of blacks was four times that of whites. As evidence of

discriminatory intent in the admissions process, the petitioners

offered the disparate effect of the test on blacks as compared to

whites. /d. at 233. The Court held that the petitioners had failed

to prove a violation of the Equal Protection Clause. Jd. at 242.

The Court declared that discriminatory intent is the critical

element in an equal protection claim and, though disparate

impact is not irrelevant to such claim, it is not sufficient as

proof of intent. Jd.

In Village of Arlington Heights v. Metro Housing

Development Corp., 429 U.S. 252 (1977), nonprofit housing

developers planned to develop a tract of land in a racially

diverse neighborhood for residents with low to moderate

incomes. When the village refused to rezone the land for

multifamily housing, the developers sued under the Equal

Protection Clause, alleging the refusal was racially motivated.

- Id. at 258-59. The Court found that the plaintiffs had failed to

prove the key element of discriminatory iment. Jd. at 270. The

14

Court held that “official action will not be held unconstitutional

solely because it results in a racially disproportionate impact.

Id. at 253.

The applicability of disparate impact in cases of alleged

sex discrimination was addressed in Personnel Administrator

of Massachusetts v. Feeney, 442 U.S. 256 (1979). Feeney

involved an equal protection claim that the award of veterans

preference in employment had a disparate impact on women,

proportionably fewer of whom were veterans. The Court noted

that Washington v. Davis and Arlington Heights recognized that

when a neutral law has a disparate impact upon a group that has

historically been the victim of discrimination, an

unconstitutional purpose may be at work. But the Court found

that those cases signaled no departure from the settled rule that

the Fourteenth Amendment guarantees equal laws, not equal

results, and this principle applies with equal force to a case

involving alleged sex discrimination. Jd. at 273-74. As the

Court concluded:

When a statute gender-neutral on its face is

challenged on the ground that its effects upon

women are disproportionally adverse, a twofold

inquiry is thus appropriate. The first question is

whether the statutory classification is indeed neutral

in the sense that it is not gender based. If the

classification itself, covert or overt, is not based

upon gender, the second question is whether the

adverse effect reflects invidious gender based

discrimination. In this second inquiry, impact

provides an important starting point, but purposeful

discrimination is the condition that offends the

Constitution.

Id. at 274 (internal citations and quotation marks omitted).

15

The Court emphasized this point in Lewis v. Casey, 518

U.S. 343 (1996) (involving prisoners’ right of access to the

courts), noting that it rejected the disparate impact theory of the

Equal Protection Clause in Washington v. Davis.

There we flatly rejected the idea that a law, neutral

on its face and serving ends otherwise within the _

power of government to pursue, is invalid under the

Equal Protection Clause simply because it may affect

a greater proportion of one race than of another. We

held that, absent proof of discriminatory purpose, a

law or official act does not violate the Constitution,

solely because it has a . . . disproportionate impact.

Id. at 375 (internal citations and quotation marks omitted).

The Court read Davis as “acknowledging the basic equal

protection principle that the invidious quality of a law claimed

to be racially discriminatory must ultimately be traced to a

racially discriminatory purpose.” Jd. (internal citations,

quotation marks, and parentheses omitted).

Lewis recognized that the Davis Court was motivated in

no small part by the potentially radical implications of the

disparate-impact rationale.

Every financial exaction which the State imposes on

a uniform basis is more easily satisfied by the well-

to-do than the indigent. Under a disparate-impact

theory . . . regulatory measures always considered to

be constitutionally valid, such as sales taxes, state

university tuition, and criminal penalties, would have

to be struck down. ... [W]e rejected in Davis the

disparate-impact approach in part because of the

recognition that [a] rule that a statute designed to

serve neutral ends is nevertheless invalid, absent

16

compelling justification, if in practice it benefits or

burdens one race more than another would be far

reaching and would raise serious questions about,

and perhaps invalidate, a whole range of tax,

welfare, public service, regulatory, and licensing

statutes that may be more burdensome to the poor

and to the average black than to the more affluent

white.

Id. at 376-77 (internal citations and quotation marks omitted).

These acknowledged dangers of the disparate impact

rationale apply to the doctrine’s application to the ADEA.

IV

SOUND PUBLIC POLICY REASONS

REJECT EXPANSION OF DISPARATE

IMPACT LIABILITY TO THE ADEA

A. Disparate Impact Liability Is Based on

Unauthorized Administrative Regulations

The Equal Employment Opportunity Commission

(EEOC), the agency charged with administration of the ADEA,

has issued regulations applying disparate impact liability to the

ADEA. 29 C.F.R. § 1625.7 (1981). This Court has recognized

that “Congress, in enacting Title VII, did not confer ‘Upon

EEOC authority to promulgate rules or regulations, and

specified that the level of deference due EEOC regulations “will

depend upon the thoroughness evident in its consideration, the

validity of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it a power to

persuade, if lacking power to control.” EEOC v. Arabian

American Oil Co., 499 U.S. 244, 257 (1991). This Court then

added that where the EEOC’s interpretation is neither

“contemporaneous with the statute’s enactment nor consistent

17

since the statute came into law” or “lacks support in the plain

language of the statute,” it is not entitled to judicial deference.

Id. at 257-58.

As set forth in Douglas €. Herbert and Lani Schweiker

Shelton, A Pragmatic Argument Against Applying the

Disparate Impact Doctrine in Age Discrimination Cases, 37 S.

Tex. L. Rev. 625 (1996) (Herbert and Shelton), the

administrative interpretation regarding the application of

disparate impact theory to the ADEA has not been consistent.

Id. at 643. The Department of Labor was charged with

administration and enforcement of the ADEA until 1978. Jd.

(citing Reorganization Plan No. 1 of 1978, 43 Fed. Reg: 19807,

92 Stat. 3781, 3 C.F.R. § 321 (1979)).

The Department of Labor initially interpreted the

ADEA to require only “reasonableness” to be

determined “on an individual, case by case basis.”

[Citing 29 C.F. R. § 860.103(d) (1968).] The ADEA

was specifically exempted from the Uniform

Guidelines on Employee Selection Procedures,

which address the validation of tests with a disparate

impact, in 1978. [Citing 29 C.F.R. § 1607.2 (1978).]

It was not until 1982 that the EEOC issued

regulations stating that the ADEA incorporated the

disparate impact theory. [Citing 46 Fed. Reg. 47727

(Sept. 29, 1981), adopting 29 C.F.R. § 1625.7(d).]

Herbert and Shelton, 37 S. Tex. L. Rev. at 643.

This belated shift of interpretation, coupled with the

language of the statute, demonstrates that the EEOC contrary

interpretation is not entitled to judicial deference.

This Court’s growing concern with abuse of the

administrative regulatory process was signaled in Solid Waste

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Agency of Northern Cook County v. L.«ted States Army Corps

of Engineers, 531 U.S. 159 (2001). In invalidating regulations

implementing Section 404 of the Clean Water Act, 33 U.S.C.

§ 1344(a) (regulating the discharge of dredged and fill material

into navigable waters), the Court declared:

Where an administrative interpretation of a statute

invokes the outer limits of Congress’ power, we

expect a clear indication that Congress intended that

result. This requirement stems from our prudential

desire not to needlessly reach constitutional issues

and our assumption that Congress does not casually

authorize administrative agencies to interpret a

statute to push the limit of congressional authority.

Solid Waste, 531 U.S. at 172-73.

This rule was reemphasized in the context of Title Vi by

Alexander vy. Sandoval. This Court there held that while a

private cause of action exists to enforce Section 601 prohibiting

disparate treatment, that right does not extend to the

enforcement of disparate impact regulations promulgated under

Section 602. 532 U.S. at 293.

Language in a regulation may invoke a private right

of action that Congress through statutory text

created, but it may not create a right that Congress

has not. Thus, when a statute has provided a general

authorization for private enforcement of regulations,

it may perhaps be correct that the intent displayed in

each regulation can determine whether or not it is

privately enforceable. But it is most certainly

incorrect to say that language in a regulation can

conjure up a private cause of action that has not been

19

authorized by Congress. Agencies may play the

sorcerer’s apprentice but not the sorcerer himself.

Id. at 291.

. In the ADEA context, where Congress has not created a

disparate impact cause of action in the statute'itself, federal

agencies may not engage in administrative sorcery to create that

right through regulations.

The disparate impact regulation is based on the

fundamental legal error that administrative regulations may

interpret a law contrary to the intent of the legislative body that

enacted it. In order not to invalidate a whole range of

employment policies that inadvertently may be more

burdensome in their effect on older workers, Congress intended

the ADEA to follow Fourteenth Amendment law and apply

only to intentional discrimination. Administrative agencies have

no power to alter that policy judgment by extending the law’s

reach to ban programs that have a disproportionate impact on

certain age groups.

B. Disparate Impact Liability

Raises the Specter of Quotas

. The potential for administrative regulations to be applied

in such a manner as to require the use of quotas in direct

opposition to the intent of Congress and the mandate of the

Fourteenth Amendment was noted with disfavor in Watson v.

Fort Worth Bank & Trust, 487 U.S. at 992.

be We agree that the inevitable focus on statistics

in disparate impact cases could put undue pressure

on employers to adopt inappropriate prophylactic

measures. It is completely unrealistic to assume that

unlawful discrimination is the sole cause of people

failing to gravitate to jobs and employers in accord

29

with the laws of chance. It would be equally

unrealistic to suppose that employers can eliminate,

or discover and explain, the myriad of innocent

causes that may lead to statistical imbalances in the

composition of their work forces. Congress has

specifically provided that employers are not required

to avoid “dis; arate impact” as such.

Id. at 992.

Watson arose in the context of Title VII allegations of

employment discrimination. The Court noted that preferential

treatment and the use of quotas by public employers under Title

VII can violate the Constitution “and it has long been

recognized that legal rules leaving any class of employers with

‘little choice’ but to adopt such measures would be ‘far from

the intent of Title VII.’ ” Jd. at 993 (citations omitted). The

Court observed:

If quotas and preferential treatment become the only

cost-effective means of avoiding expensive litigation

and potentially catastrophic liability, such measures

will be widely adopted. The prudent employer will

be careful to ensure that its programs are discussed

in euphemistic terms, but will be equally careful to

ensure that the quotas are met. Allowing the

evolution of disparate impact analysis to lead to this

result would be contrary to Congress’ clearly

expressed intent.

Id.

The same logic applies to ADEA. Allowing this law to

evolve into a mandate for age-based quoi1s would be contrary

to Congress’ clear intent.

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It is time for the courts to rethink the use of disparate

impact analysis. When a disparity is caused by intentional

discrimination, it should be remedied in an appropriate manner.

That is what Congress intended in the enactment of the ADEA

and the Civil Rights Act. But when a disparity is the result of

policies that result not from intentional discrimination but from

neutral factors, the courts should decline to intervene. By

focusing on intentional discrimination, the courts can ensure

that it is rooted out wherever it may be found. At the same

time, by discarding the disparate impact doctrine, the courts can

guard against outcomes that, while well-meaning in intent, are

counterproductive in practice.

—+

CONCLUSION

For the reasons stated above, the decision of the Fifth

Circuit should be affirmed.

DATED: AUGUST, 2004.

Respectfully submitted,

JOHN H. FINDLEY

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation

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