Jottings By An Employer's Lawyer

Thursday, November 13, 2003

5th Cir. - Disparate Impact Theory NOT Available in Age Discrimination Cases


While the Supreme Court was grappling with the complexities of the ADEA in another context yesterday, today's 5th Circuit decision in Smith v. City of Jackson, Mississippi (5th Cir. 11/13/03) holding that the theory of disparate or adverse impact is not available in age discrimination cases is an important victory for employers. If the decision were different, any neutral practice that adversely impacted those over 40, would have to be justified as a business necessity. Although a plus for employers, it is unlikely to be the last word since Judge Stewart dissented, and there is a split among the circuits over this precise issue.

In fact the Supreme Court granted certiorari on this particular issue once before in Adams v. Florida Power , but then one month after oral argument (transcript of argument here) dismissed the case finding certioriar to have been improvidently granted. (Meaning in all likelihood, after thinking about it, we don't want to tackle this one yet.) Although it may not be Smith v. City of Jackson, sooner or later, it is a major issue that ultimately will be decided by the Supreme Court.


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