THIRD CIRCUIT ALLOWS CASE UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT BROUGHT BY EMPLOYEES OVER 50

In January 2017, the Third Circuit Court of Appeals held that the Age Discrimination in Employment Act (“ADEA”) permits a subset of the protected group – in this case employees aged 50 and older – to sustain a disparate-impact case even though another subset of the protected group was not affected.

Disparate impact claims under the ADEA allege that a facially neutral policy that applies to all employees disproportionately affects employees over 40. In Karlo v. Pittsburgh Glass Works, LLC, the facially neutral policy at issue disproportionately affected employees 50 and over but favored employees between 40 and 49. Therefore, when the evidence was considered the fact that the policy benefitted employees 40-49 years old negated the evidence that the policy harmed those employees over 50.

In ruling that the employees over 50 could maintain their claims under the ADEA, the Third Circuit stated:

we hold that an ADEA disparate-impact claim may proceed when a plaintiff offers evidence that a specific, facially neutral employment practice caused a significantly disproportionate adverse impact based on age. Plaintiffs can demonstrate such impact with various forms of evidence, including forty-and-older comparisons, subgroup comparisons, or more sophisticated statistical modeling, so long as that evidence meets the usual standards for admissibility. A contrary rule would ignore significant age-based disparities.

The Third Circuit further noted that its decision comports with the general provisions and the remedial purpose of the ADEA, which make it unlawful for any employer to “adversely affect” an employee “because of such individual’s age.” 29 USC §623(a)(2). Simply stated, the Third Circuit found that the ADEA permits victims of a facially discriminatory policy over the age of 50 to bring a claim against their employer even though employees over the age of 40 were not similarly harmed and may have even be favored.

This decision can only be seen as a positive for employees alleging age discrimination and who are relying upon a disparate impact theory.