by Michael Fox
For the second time, the Supreme Court has taken a case that raises the issue of whether or not adverse impact cases can be brought under the Age Discrimination in Employment Act. Last time the Court ducked after oral argument and found that the writ had been 'improvidently granted.' Unlikely to do that this time. The grant was teed up as both sides basically said that it was an appropriate case if the court wanted to take up the issue. And it is a big issue, particularly for reductions in force and benefits. For some background see the story in the New York Times. The underlying case is from the 5th Circuit's determination that disparate impact is not available in age cases. Our initial report was here.
And congratulations to Tom Goldstein and his students at the Stanford law clinic who are counsel for the petitioner as mentioned here.