The Difference Between Disparate Impact and Disparate Impact 'Lite'
by Michael Fox
Was clearly played out in the 2nd Court of Appeals yesterday as the Court revisited its 2004 decision in Meacham v. KAPL, Inc. where it found the employer guilty of age discrimination under the disparate impact theory. I had this comment at the time, If the Supreme Court Accepts Disparate Impact Under the ADEA -- Read Your Future.
Yesterday, the 2nd Circuit held that the same employer in the same case won under the disparate impact theory. Meacham v. KAPL, Inc. (2nd Cir. 8/14/06) [pdf]. In between and responsible for the two differing outcomes was the Supreme Court's decision in Smith v. City of Jackson, reported on in my post, Supreme Court - 'Adverse Impact* Lite' Theory Available Under the ADEA.
Under the full fledged disparate impact theory, if a plaintiff points out a specific employment practice that disparately impacts on a protected class and shows that there is an acceptable alternative that would not have a disparate impact -- plaintiff wins. That version of adverse impact is available for those protected by Title VII.
But age claimants, by virtue of Smith v. City of Jackson are protected only by disparate impact 'lite'. Which means according to yesterday's opinion, that when the plaintiff established a specific employment practice disparately impacted a group based on age, the burden of explaining that practice shifted to the defendant. When the defendant articulated a reason for that employment practice, the burden shifted back to the plaintiff to show that the rationale given by the employer was "unreasonable." The fact that there is an alternative that would not create a disparate impact does not matter.
Bottom line for the Meacham plaintiffs, even though they could show an alternative practice they could not show the rationale was unreasonable. Victory was snatched from them because it is disparate impact 'lite' not just disparate impact.
All is not necessarily lost since there was a vigorous dissent. Maybe the in banc court will want to give it yet another go.
*I now officially give up my campaign to assist all of us by using totally separate terms for totally separate theories of discrimination. If it were left to me, I would say "disparate treatment" and "adverse impact." But no matter how helpful that might be, I yield to the Supreme Court (and everyone else it seems) and will now use disparate impact as well as disparate treatment.