# Amicus Curiae Brief — Smith v. City of Jackson

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0738%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 958

## Text

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

18

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.

21

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

22

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0738%3A17. Public record. Not legal advice.