concurring:
I.
I concur in the opinion of the majority except insofar as it takes the position that, under the Age Discrimination in Employment Act, a plaintiff may not introduce statistical evidence of discrimination against a subgroup of the protected age group in order to help establish a prima facie case of age discrimination. I believe the majority’s refusal to recognize subgroups unduly restricts the scope of protection available to persons within the protected age group. Further, I believe such a position will impact most severely upon those most in need of the statute’s protections.
Considering first the practical consequences of the majority’s position, it is apparent that a failure to recognize subgroups in the context of ADEA claims ordinarily will have no adverse effect upon the ability of those on the lower end of the protected age group (those 40 years of age and slightly older) to successfully prosecute such claims. Generally, however, there will be an increasingly adverse effect due to such a failure which will occur in direct relation to a claimant’s age. This is evident if one accepts as fact that “[s]eldom will a 60-year old be replaced by a person in [his] twenties.” McCorstin v. United States Steel Corp., 621 F.2d 749, 753-54 (5th Cir.1980). Instead, the likely beneficiary of discrimination against a 60-year old person will be another member of the protected group, i.e., a person more than 40 years of age. Thus, “[i]f no intra-age group protection were provided by the ADEA, it would be of virtually no use to persons at the upper ages of the protected class whose jobs require experience since even an employer with clear anti-age animus would rarely replace them with someone under 40.” Maxfield v. Sinclair Inter., 766 F.2d 788, 792 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). On the other hand, when a person who is only 40 years of age or slightly older suffers discrimination, a person outside the protected class is likely to benefit, i.e., a person less than 40 years of age. Given the clear purpose of the Act, namely, to protect persons against discrimination due to age, it would indeed be strange, and even perverse, if the youngest members of the protected class were to be accorded a greater degree of statutory protection than older members of the class. I do not believe we should construe the Act so that it leads to such a result unless it is clear that in doing so we are carrying out the intent of Congress.
The ADEA expressly protects individuals against age discrimination. 29 U.S.C. § 631(a) (Supp. V 1987) (“individuals who are at least 40 years of age” are protected by the ADEA). Nothing in the statute suggests that when a member of the protected class is discriminated against on the basis of age, the extent of that individual member’s rights should be contingent upon the age of the person who has benefited from that discrimination. The majority opinion, however, would raise this fortuity to the level of a dispositive factor in those instances where disparate treatment cannot be shown.
Nor is the majority’s position supported by case law. In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court noted that “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Id. at 432, 91 S.Ct. at 854.1 For those at the upper end of the protected class, however, a refusal *1380to recognize subgroups in disparate impact analysis is tantamount to limiting the protections of the ADEA to instances where discriminatory motivation can be shown. See McCorstin, 621 F.2d at 754. In my view, such a refusal goes against the “thrust” of Congress’ intent, as the Supreme Court discerned that intent in Griggs. Several courts that have considered the issue of intra-age group protection in the context of ADEA claims based on disparate treatment have concluded that a failure to recognize subgroups would unduly eviscerate the protections of the ADEA. Maxfield, 766 F.2d at 792; see Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1442 (11th Cir.), cert, denied, 474 U.S. 1005,106 S.Ct. 525, 88 L.Ed.2d 457 (1985); McCorstin, 621 F.2d at 753-54. The rationale provided by these courts— that the oldest members of the protected class are entitled to protection equal to that given the youngest members of the class— should apply with equal force to ADEA claims based on disparate impact. I see no reason to distinguish between disparate treatment and disparate impact in this regard, and, indeed, I do not perceive a rationale for doing so in the majority opinion.
Additionally, I do not agree with the majority’s contention that the approval of subgroups in this context would be “inconsistent with our decision in Getter [v. Markham],” 635 F.2d 1027 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). In Getter, a finding of disparate impact was upheld. It is true, as the majority notes, that “[w]e did not examine whether subsets of the older members in the over-40 protected group were disparately impacted.” Ante, at 1373. We did not do so, however, because (1) such an examination was unnecessary to our decision, and (2) it appears that the issue was never raised. I believe the majority has unduly extended the reach of Getter. The fact that the Getter court did not opine beyond the requirements of the case as to the outer limits of the use of the disparate impact theory should not be construed as having established those limits sub silen-tio.
The majority correctly observes that “there is nothing to prevent a 55-year old plaintiff from prevailing on a disparate treatment claim. The use of disparate impact is but one means of demonstrating age discrimination.” Ante, at 1372. Although this observation is correct, it is irrelevant. Disparate impact theory evolved precisely because in some circumstances discrimination of the type addressed by Congress existed, yet, disparate treatment theory proved insufficient to demonstrate the discrimination. See Griggs, 401 U.S. at 432-33, 91 S.Ct. at 854. The fact that implementation of the majority’s position would only result in a partial evisceration of the ADEA’s intended scope does not seem to me a convincing reason to adopt that position.
Finally, the majority’s octogenarian versus septuagenarian hypothetical, ante, at 1373-1374, does not redeem its narrow view. In such a case, where the difference in age is slight, the district court might well “find the evidence was insufficient to permit an inference of discrimination.” Maxfield, 766 F.2d at 793; see Watson v. Fort Worth Bank and Trust, — U.S. -, 108 S.Ct. 2777, 2789, 101 L.Ed.2d 827 (1988) (plurality); Getter, 635 F.2d at 1033-34. Indeed, precisely that situation apparently occurred in this case, where the district court, finding the evidence insufficient, declined to charge the jury on disparate impact. In offering its hypothetical in support of its rejection of the use of subgroups, the majority has failed to distinguish the likelihood of a violation of a right from the propriety of recognition of that right. If an 85-year old person is in all respects qualified for a particular position and fails to attain that position for no reason other than age, s/he has suffered age discrimination under the Act and is entitled to the full benefit of the statute’s protections.
In sum, I believe that Congress intended the ADEA to provide every employee over the age of 40 with protection “against both discriminatory treatment and ‘practices that are fair in form but discriminatory in *1381operation,’ ” i.e., in impact.2 Connecticut v. Teal, 457 U.S. 440, 455-56, 102 S.Ct. 2525, 2535, 73 L.Ed.2d 130 (1982) (quoting Griggs, 401 U.S. at 431, 91 S.Ct. at 853). To achieve this end, we have approved the use of disparate impact theory in ADEA claims. Geller, 635 F.2d at 1032-34. The issue in this case is whether the reasons for allowing use of the disparate impact theory in the first place are sufficiently strong to mandate its effective use along the entire span of years of the protected age group. The majority contends they are not; for the reasons noted above, I respectfully disagree.
II.
Notwithstanding my disagreement with the majority, I concur in the judgment of the court. Even assuming acceptance of the subgroup theory, I believe appellants have failed to demonstrate a prima facie case of disparate impact caused by a specific employment practice, as Wards Cove Packing Co. v. Atonio requires. — U.S. -, 109 S.Ct. 2115, 2124-25, 104 L.Ed.2d 733 (1989). The nearest appellants come to establishing such a practice is with regard to the interview process; however, the difference in the interview results between those older than 50 and those younger than 50 seems truly de minimus herein. To establish a prima facie case of discrimination utilizing the disparate impact theory, “a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact,” Teal, 457 U.S. at 446, 102 S.Ct. at 2530 (emphasis added); clearly, no such “significantly discriminatory impact” was demonstrated here.
. While the Supreme Court in Griggs was construing Title VII of the Civil Rights Act of 1964, the Court has also noted that "the [substantive] prohibitions of the ADEA were derived in haec verba from Title VII.” Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978). In Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir.1980), cert, denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981), we relied on Griggs in holding that proof of discriminatory impact can establish a violation of the ADEA. Such reliance upon Griggs is equally applicable here.
. Although the Supreme Court accepted the disparate impact theory in 1971, see Griggs, 401 U.S. at 431, 91 S.Ct. at 853, the Court did not use the term “disparate impact" until 1977, see International Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n. 15, 97 S.Ct. 1843, 1855 n. 15, 52 L.Ed.2d 396 (1977).