United States Court of Appeals
Fifth Circuit
F I L E D
Revised December 4, 2003 November 13, 2003
IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-60850
AZEL P SMITH; JACQUELINE BUTLER; RUTHIE PORTER; GLORIA
BURNS; WILLIE ALLEN; ET AL
Plaintiffs - Appellants
v.
CITY OF JACKSON, MISSISSIPPI; POLICE DEPARTMENT OF THE CITY
OF JACKSON, MISSISSIPPI
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi, Jackson
Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.
KING, Chief Judge:
Plaintiffs-appellants, thirty police officers and public
safety dispatchers employed by the defendants-appellees, the City
of Jackson and the Police Department of the City of Jackson, appeal
the district court’s order granting summary judgment in favor of
the defendants. The appeal presents an issue of first impression
in our circuit regarding whether a disparate impact theory of
liability is available to plaintiffs suing for age discrimination
under the Age Discrimination in Employment Act of 1967. The
district court ruled that, as a matter of law, claims of disparate
1
impact cannot be brought under the Act. We agree and therefore
affirm the judgment of the district court as to this issue.
However, because the district court granted summary judgment in
favor of the defendants on the plaintiffs’ disparate treatment
claim before addressing pending motions related to the plaintiffs’
ability to fully develop the summary judgment record, we vacate the
district court’s final judgment insofar as it dismissed the
plaintiffs’ disparate treatment claim.
I.
PROCEDURAL HISTORY
On May 14, 2001, thirty police officers and public safety
dispatchers – all over the age of forty and all employed by the
defendants – filed suit pursuant to the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. (2000). They
claimed injuries as a result of an allegedly age-discriminatory
performance pay plan (“the plan”) implemented by the defendants in
order to grant substantially larger salary increases to police
officers and public safety dispatchers (collectively “officers”)
under the age of forty. The plan was implemented by the defendants
on October 1, 1998, and revised by the defendants on March 1, 1999.
Under the plan, those officers and dispatchers with five or fewer
years of tenure with the department received proportionately
greater raises when compared to their former pay than those with
more than five years of tenure. As stated by the district court:
The plan accordingly created three categories for the
purposes of the analysis of this case: 1) those officers
2
and dispatchers with less than five years of tenure,
most, if not all, of whom would have been under 40 years
of age; 2) those 40 years of age or older, most, if not
all, of whom would have had more than five years of
tenure, and; 3) those under 40 years of age with more
than five years of tenure.
On December 11, 2001, the plaintiffs moved to compel certain
fiscal and personnel discovery related to the implementation and
revision of the plan; the magistrate judge overseeing disputes
related to discovery in this matter granted this motion on January
16, 2002, concluding that “the fiscal and personnel discovery
requested by the Plaintiffs is not privileged . . . and should be
produced.” On June 5, 2002, the plaintiffs filed a “motion for
sanctions, a default judgment, attorneys’ fees and expenses, expert
witness fees and a continuance,” seeking to have the defendants
comply with disclosure and discovery obligations as set forth in
the Federal Rules of Civil Procedure and the order of the
magistrate judge. Two days later, the defendants moved for summary
judgment, and the plaintiffs thereafter moved to strike certain
exhibits to the defendants’ motion, in part because the existence
of the documents attached as exhibits had been previously denied by
the defendants.
On September 6, 2002, while the plaintiffs’ motions were
pending, the district court granted summary judgment in favor of
the defendants on the plaintiffs’ disparate impact and disparate
treatment claims and denied the plaintiffs’ pending motions as
moot. Final judgment was entered on this same date.
The plaintiffs appeal this final judgment, maintaining that:
3
(1) the district court erred in concluding that a disparate impact
theory of liability is not cognizable under the ADEA, and (2) the
district court erred in improvidently dismissing the plaintiffs’
disparate treatment claim pending production by the defendants of
requested discovery materials.
II.
STANDARD OF REVIEW
We review the grant of summary judgment de novo, applying the
same standards as did the district court. Daniels v. City of
Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 534 U.S. 951
(2001). Summary judgment should be granted if there is no genuine
issue of material fact for trial and the moving party is entitled
to judgment as a matter of law. FED. R. CIV. P. 56(c). In
determining if there is a genuine issue of material fact, this
court reviews the evidence in the light most favorable to the non-
moving party. Daniels, 246 F.3d at 502.
III.
THE PLAINTIFFS’ DISPARATE IMPACT CLAIM
The plaintiffs raise both disparate treatment and disparate
impact theories of liability here. Regarding their disparate
treatment claim, the plaintiffs allege that the defendants were
motivated by age to implement a plan that discriminated against
them intentionally. Regarding their disparate impact theory, the
plaintiffs allege that the implementation of the facially neutral
plan by the defendants gives rise to liability without a showing of
intentional age motivation because the plan resulted in pay
4
increases to officers under forty years of age that were four
standard deviations higher than the raises received by officers
over forty. In support of their disparate impact theory, the
plaintiffs proffered to the district court statistical data
demonstrating that the average pay increases made pursuant to the
plan differed by age and that older officers received smaller
raises than their younger counterparts.
In a disparate treatment case, liability depends on whether
the protected trait – here, age – actually motivated the employer’s
decision. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).
The employer may have relied on a facially discriminatory policy
requiring adverse treatment of older employees or may have been
motivated by age to discriminate against an individual on an ad hoc
basis – “[w]hatever the employer’s decisionmaking process, a
disparate treatment claim cannot succeed unless the employee’s
protected trait actually played a role in that process and had a
determinative influence on the outcome.” Id. Proof of
discriminatory motive is thus critical to the success of a
plaintiff’s discriminatory treatment claim. Id. In contrast, in
a disparate impact case, liability may result without a
demonstration of discriminatory motive. Id. at 609. Disparate
impact claims arise from “employment practices that are facially
neutral in their treatment of different groups but that in fact
fall more harshly on one group than another and cannot be justified
by business necessity.” Id. (quoting Int’l Bhd. of Teamsters v.
United States, 431 U.S. 324, 335-36 n.15 (1977)).
5
In 1971, the Supreme Court held that plaintiffs may bring
disparate impact claims under Title VII. Griggs v. Duke Power Co.,
401 U.S. 424, 430-31 (1971). This judicial construction of the
statute was codified by Congress in 1991 to make clear that such a
theory was available to plaintiffs. See Civil Rights Act of 1991,
Pub. L. No. 102-166, § 105(a), 105 Stat. 1071, 1074-75 (adding 42
U.S.C. § 2000e-2(k)).1 The availability of a disparate impact
theory under the ADEA, however, is not so clear. In Hazen Paper
Co. v. Biggins, the Supreme Court expressly declined to weigh in on
whether the ADEA entitles a plaintiff to bring a disparate impact
cause of action, stating that “we have never decided whether a
disparate impact theory of liability is available under the ADEA,
and we need not do so here.” 507 U.S. at 610 (internal citation
omitted).
This express reservation has led to a debate amongst the
courts of appeals regarding whether the ADEA, like Title VII,
entitles a plaintiff to bring a disparate impact claim. Those
1
We note that the same statute did not make a parallel
amendment to the ADEA, although it did amend the ADEA in other
ways. Some of our sister circuits have concluded that this
omission (together with other factors) indicates a congressional
intent that a disparate impact cause of action not be available
under the ADEA. See Mullin v. Raytheon Co., 164 F.3d 696, 703
(1st Cir. 1999); Ellis v. United Airlines, Inc., 73 F.3d 999,
1008 (10th Cir. 1996). Such congressional inaction is
susceptible of multiple interpretations, however, and so we
should hesitate before we draw inferences from it. See
Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306 (1988). The
Civil Rights Act of 1991 was mainly aimed at overriding certain
interpretations of Title VII, and so we do not find it especially
probative with respect to the question before us today.
Accordingly, our interpretation of the ADEA, set forth later in
this opinion, rests on other grounds.
6
courts of appeals extending the holding in Griggs to the ADEA do so
based on the textual similarities between the prohibitory sections
of the ADEA and Title VII. See Frank v. United Airlines, Inc., 216
F.3d 845, 856 (9th Cir. 2000) (stating, post-Hazen, that “[w]e see
no reason to depart from our conclusion . . . and we again hold
that a disparate impact claim is cognizable under the ADEA”);
Criley v. Delta Air Lines Inc., 119 F.3d 102, 105 (2d Cir. 1997)
(following, without discussion, pre-Hazen law in stating that “in
our circuit, we have recognized such a[] [disparate impact]
action”); Smith v. City of Des Moines, 99 F.3d 1466, 1470 (8th Cir.
1996) (stating that “even if we believed that Hazen Paper cast
doubt on the validity of [pre-Hazen case law], Houghton [a post-
Hazen case] represents the law of this Circuit” and must therefore
be followed). Those courts of appeals declining to hold that a
disparate impact theory is cognizable under the ADEA recognize the
significant textual overlap in the prohibitory sections of the ADEA
and Title VII, but they also look beyond this similarity, examining
the entire ADEA statute (and the purpose behind its enactment) and
finding important differences between the ADEA and Title VII that
counsel against extending the Griggs holding to the ADEA context.
See Adams v. Fla. Power Corp., 255 F.3d 1322, 1325-26 (11th Cir.)
(holding that disparate impact claims may not be brought under the
ADEA, in part because “the history of the ADEA differs from the
legislative history of Title VII, which the Supreme Court in Griggs
relied on to find a cause of action for disparate impact”), cert.
granted, 534 U.S. 1054 (2001), cert. dismissed, 535 U.S. 228
7
(2002); Mullin, 164 F.3d at 703 (“Congress never intended to make
a disparate impact cause of action available under the ADEA.”);
Maier v. Lucent Tech., Inc., 120 F.3d 730, 735 (7th Cir. 1997)
(“[S]uch a theory of liability [disparate impact] is not cognizable
under the ADEA.”); Ellis, 73 F.3d at 1001 (“[W]e hold that ADEA
claims cannot be based on a disparate impact theory of
discrimination.”).2
After surveying the well-traversed arguments on either side of
this debate, we hold that the ADEA was not intended to remedy age-
disparate effects that arise from the application of employment
plans or practices that are not based on age. Fundamental to our
decision is the ADEA’s express exception permitting employer
conduct based on “reasonable factors other than age” – an exception
absent from Title VII – and the inapplicability to the ADEA context
of the policy justifications identified by the Supreme Court (in
Griggs, 401 U.S. at 430-31) for recognizing a disparate impact
cause of action in the Title VII context.
A. Similarities Between the ADEA and Title VII
2
After Hazen, the Third and the Sixth Circuits have both
expressed “considerable doubt” regarding whether a claim of age
discrimination may be stated under a disparate impact theory.
Lyon v. Ohio Educ. Ass’n & Prof’l Staff Union, 53 F.3d 135, 139
n.5 (6th Cir. 1995) (“The Court’s focus in Hazen Paper on
Congress’s intent to prevent discrimination based on inaccurate
and damaging stereotypes suggests that incidental discriminatory
effects arising from facially age-neutral policies are not
redressable.”); DiBiase v. SmithKline Beecham Corp., 48 F.3d 719,
732 (3d Cir. 1995) (opinion of Greenberg, J.) (stating that “the
analysis in Hazen casts considerable doubt on the viability of
the theory”). However, in neither case was the issue directly
before the court.
8
The construction of a statute begins with the text of the
statute itself. The ADEA prohibits discrimination on the basis of
age. See 29 U.S.C. § 623 (2000). It was enacted in 1967, before
the Supreme Court first interpreted Title VII to allow employees to
prove discrimination by showing disparate impact. See Griggs, 401
U.S. at 431. The plaintiffs correctly identify the core sections
expressly prohibiting discrimination “because of [an] individual’s
age” in the ADEA – § 623(a)(1) and (a)(2) – as overlapping almost
identically with the core sections expressly prohibiting
discrimination “because of [an] individual’s race, color, religion,
sex, or national origin” in Title VII – 42 U.S.C. § 2000e-2(a)(1)
and (2).3 This is no coincidence; “the prohibitions of the ADEA
3
Section 623’s prohibitory subsections provide, in
relevant part, that it is unlawful for an employer:
(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s age;
(2) to limit, segregate, or classify his employees
in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because of
such individual’s age . . . .
29 U.S.C. § 623(a)(1)-(2). The prohibitory subsections of Title
VII provide, in relevant part, that it is unlawful for an
employer:
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national
origin; or
(2) to limit, segregate, or classify his employees
or applicants for employment in any way which would
9
were derived in haec verba from Title VII.” Lorillard v. Pons, 434
U.S. 575, 584 (1978). The only differences in the prohibitory
language contained in these statutes are: (1) Title VII protects
against discrimination on the basis of “race, color, religion, sex,
or national origin,” while the ADEA protects against discrimination
on the basis of “age”; and (2) Title VII extends protection also to
“applicants” for employment, while the ADEA does not.
Although the ADEA’s prohibitory provisions are at first blush
read most naturally as outlawing only conduct motivated by age –
the statute refers to actions taken “because of” age – Griggs of
course held that parallel language in Title VII prohibited actions
that had a race-disparate impact, irrespective of motive or intent.
The significant overlap between the prohibitory sections of the
ADEA and of Title VII persuaded the Second Circuit to hold early
on, with little discussion, that a disparate impact theory of
liability is likewise available under the ADEA. See Geller v.
Markham, 635 F.2d 1027, 1031-32 (2d Cir. 1980).4 The Eighth and
Ninth Circuits soon followed suit, again without any significant
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as
an employee, because of such individual’s race, color,
religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1)-(2).
4
Then-Justice Rehnquist dissented from the denial of
certiorari in Geller. 451 U.S. 945 (1981). In so doing, he
stated that “[i]n my opinion, the decision of the Court of
Appeals is inconsistent with the express provisions of the ADEA
and is not supported by any prior decision of this Court.” Id.
at 947.
10
inquiry apart from drawing a parallel to Title VII. See Leftwich
v. Harris-Stowe State Coll., 702 F.2d 686, 690 (8th Cir. 1983);
Douglas v. Anderson, 656 F.2d 528, 531 n.1 (9th Cir. 1981).5 As
noted earlier, these circuits continue to follow that position.6
While the First, Seventh, Tenth, and Eleventh Circuits have
likewise approached the statutory construction of the ADEA by
looking at the text of the ADEA, they have (we think correctly)
declined to limit their construction calculus solely to the
prohibitory sections of the ADEA and Title VII. Instead, as we
explore below, they look to the entire statute and legislative
history of the ADEA to recognize important textual and policy-based
differences between the ADEA and Title VII that demonstrate an
intention on the part of Congress to allow for claims of
5
At around the same time, the EEOC issued new
interpretive guidelines for the conduct of ADEA cases. We note
that one portion of those guidelines seems to be based on the
assumption that the Griggs framework applies to ADEA cases. See
46 Fed. Reg. 47,724, 47,725 (1981) (Sept. 29, 1981) (amending 29
C.F.R. § 1625.7(d)). Such guidelines are not entitled to Chevron
deference. Christensen v. Harris County, 529 U.S. 576, 587
(2000); EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 256-58 (1991).
We are of course still bound to treat them as having persuasive
force, to the extent that they are thoughtfully considered. See
Christensen, 529 U.S. at 587. The guideline in question does not
purport to affirmatively establish that a disparate impact theory
is available. Instead, it simply assumes, on the basis of
Griggs, that such a theory is available. See 46 Fed. Reg. at
47,725. Given the absence of significant analysis, and in light
of subsequent developments that have cast doubt on that
assumption, we do not believe that this administrative guidance
is convincing authority.
6
The Seventh Circuit, which had originally permitted
disparate impact suits under the ADEA, changed course after
Hazen. See EEOC v. Francis W. Parker Sch., 41 F.3d 1073 (7th
Cir. 1994).
11
intentional age discrimination, but not for claims of disparate
impact discrimination.
B. Differences Between the ADEA and Title VII
(1) Section 623(f)(1) of the ADEA
The ADEA’s prohibitions against age discrimination in
employment are qualified by several exceptions to employer
liability set forth in § 623(f). Pursuant to one of these
exceptions, an employer can avoid liability under the ADEA if the
adverse employment action is “based on reasonable factors other
than age.” 29 U.S.C. § 623(f)(1).7
Neither the “reasonable factors other than age” exception nor
a parallel provision is found in Title VII. Facially, the
exception appears to serve as a safe harbor for employers who can
demonstrate that they based their employment action on a reasonable
non-age factor, even if the decision leads to an age-disparate
result. In a pre-Hazen dissenting opinion, Judge Easterbrook
argues against recognizing a disparate impact theory of liability
under the ADEA based on this “reasonable factors other than age”
7
Section 623(f)(1) provides, in relevant part:
It shall not be unlawful for an employer,
employment agency, or labor organization –
(1) to take any action otherwise prohibited under
subsections (a), (b), (c), or (e) of this section where
age is a bona fide occupational qualification reasonably
necessary to the normal operation of the particular
business, or where the differentiation is based on
reasonable factors other than age . . . .
29 U.S.C. § 623(f)(1).
12
exception:
[Section (f)(1)], which says that “reasonable factors
other than age” may be the basis of decision – impl[ies]
strongly that the employer may use a ground of decision
that is not age, even if it varies with age. What else
could be the purpose of this language? Surely it does
not mean simply that “only age discrimination is age
discrimination.” “The prohibition and the exception
appear identical. The sentence is incomprehensible
unless the prohibition forbids disparate treatment and
the exception authorizes disparate impact.”
Metz v. Transit Mix, Inc., 828 F.2d 1202, 1220 (7th Cir. 1987)
(Easterbrook, J., dissenting) (quoting Douglas Laycock, Continuing
Violations, Disparate Impact in Compensation, and Other Title VII
Issues, 49 L. & CONTEMP. PROBS. 53, 55 (1986)). Post-Hazen case law
likewise reads the inclusion of the “reasonable factors other than
age” exception to imply a congressional intent to remedy only
intentional discrimination because of age through the passage of
the ADEA. For example, the First Circuit states:
A critical asymmetry in the texts of the ADEA and Title
VII counsels convincingly against recognizing a disparate
impact cause of action under the former statute . . . .
This [“reasonable factors other than age”] proviso
permits employers to utilize factors other than age as
grounds for employment-related decisions that
differentially impact members of the protected class
(individuals between the ages of 40 and 69). When this
exception is read with the ADEA’s general prohibition
against age-based discrimination, the resulting
construction follows: it shall be unlawful to
“discriminate against any individual . . . because of
such individual’s age,” except when “based on . . .
factors other than age.” Thus, if the exception
contained in section 623(f)(1) is not understood to
preclude disparate impact liability, it becomes nothing
more than a bromide to the effect that “only age
discrimination is age discrimination.”
13
Mullin, 164 F.3d at 701-02. We too find that the inclusion of the
“reasonable factors other than age” exception to the ADEA creates
a critical “asymmetry” between the ADEA and Title VII.8 The
addition of this broad exception to the ADEA, on its face, appears
to preclude a disparate impact theory of liability under the ADEA;
at a minimum, it amounts to a salient textual difference between
the substantive liability provisions of the ADEA and Title VII – a
difference not mentioned by any of the courts of appeals which have
extended Griggs to the ADEA context.9
While we believe that the “reasonable factors other than age”
provision counsels against recognizing a disparate impact theory
8
In his dissent from the denial of certiorari in Geller,
then-Justice Rehnquist likewise focused on § 623(f)(1) to support
his view that Congress did not intend that a disparate impact
claim be cognizable under the ADEA:
In my view, Congress did not intend the ADEA to have the
restraining influence on local governments which will
result from the decision below. Congress revealed this
intention in 29 U.S.C. § 623(f)(1), which provides that
it shall not be unlawful for an employer to take any
action otherwise prohibited “where the differentiation is
based on reasonable factors other than age.”
Geller, 451 U.S. at 948-49 (Rehnquist, J., dissenting from denial
of cert.).
9
This difference between the statutes also means that
the rule of in pari materia, heavily relied upon by our colleague
in dissent, is largely inapplicable to this case. For while we
usually endeavor to give like language the same meaning, it is a
cardinal rule of statutory interpretation that we are to consider
the whole act, reading each section in light of the others.
E.g., United Sav. Ass’n of Tex. v. Timbers of Inwood Forest
Assocs., 484 U.S. 365, 371 (1988) (“Statutory construction,
however, is a holistic endeavor. A provision that may seem
ambiguous in isolation is often clarified by the remainder of the
statutory scheme . . . .”).
14
under the ADEA, we would not go so far as to say that it rules out
any alternative reading. As the dissent argues, the prohibitory
section and the “reasonable factors other than age” clause could
together be read as announcing a general rule that disparate impact
is actionable but then carving out a defense for adverse impacts
that can be justified as a business necessity. The dissent’s
position is, of course, essentially how the courts have treated
claims under Title VII. We do not believe this course is open to
us, however. This circuit long ago held that § 623(f)(1)’s
“reasonable factors other than age” provision does not create an
affirmative defense to liability; rather, it allows the defendant
to bring forward evidence to negate the plaintiff’s prima facie
case. See Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 590-
91 (5th Cir. 1978). Furthermore, whether or not § 623(f)(1) is
technically treated as a defense, we do not think that the
reference to “reasonable factors other than age” can be taken to
mean that all practices having a disparate impact are illegal
unless they meet the stringent requirements of “business
necessity.” Indeed, the Supreme Court has suggested a different
meaning for the clause, stating that it “insure[s] that employers
[are] permitted to use neutral criteria not directly dependent on
age.” EEOC v. Wyoming, 460 U.S. 226, 232-33 (1983) (emphasis
added); cf. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88 (2000)
(“The exception simply makes clear that ‘[t]he employer cannot rely
on age as a proxy for an employee’s remaining characteristics, such
as productivity, but must instead focus on those factors
15
directly.’” (quoting Hazen, 507 U.S. at 611)). Therefore, we would
not read the “reasonable factors other than age” clause as a
limited derogation from a general prohibition against disparate
impact. Instead, we believe that the soundest reading of the whole
text is that the ADEA does not prohibit employers from taking
actions based on non-age factors, except when those non-age factors
are so related to age that they are mere proxies.10 This reading
of the text is also powerfully supported by the legislative
history, to which we turn in Part III.B.2 of our opinion.
The conclusion that this “reasonable factors other than age”
exception textually precludes a disparate impact theory of
liability under the ADEA is arguably strengthened by the Supreme
Court’s treatment of a similar exception to the Equal Pay Act.
The Equal Pay Act was originally enacted in 1963 (as an amendment
to the Fair Labor Standards Act) to prohibit discrimination in
wages based on gender. Corning Glass Works v. Brennan, 417 U.S.
188, 195 (1974). Under subsection (d), entitled “Prohibition of
sex discrimination,” in Title 29, section 206, the Equal Pay Act
contains an exception similar to the “reasonable factors other than
age” exception found in the ADEA:
No employer having employees subject to any
provisions of this section shall discriminate, within any
establishment in which such employees are employed,
10
In order to resolve this case, we need not speculate on
what such factors might be. The Supreme Court held in Hazen that
adverse employment actions based on job tenure do not, without
more, amount to disparate treatment based on age. 507 U.S. at
611-12.
16
between employees on the basis of sex . . . except where
such payment is made pursuant to (i) a seniority system;
(ii) a merit system; (iii) a system which measures
earnings by quantity or quality of production; or (iv) a
differential based on any other factor other than sex:
Provided, That an employer who is paying a wage rate
differential in violation of this subsection shall not,
in order to comply with the provisions of this
subsection, reduce the wage rate of any employee.
29 U.S.C. § 206(d)(1) (emphasis added). The Supreme Court has
interpreted this exception to preclude actions based on disparate
impact theories under the Equal Pay Act. See County of Washington
v. Gunther, 452 U.S. 161, 169-71 (1981); Los Angeles Dep’t of Water
& Power v. Manhart, 435 U.S. 702, 710 (1978). For example, in
Manhart, a class action was brought on behalf of female employees
of the Los Angeles Department of Water and Power challenging the
Department’s requirement that female employees make larger
contributions to its pension fund than male employees. 435 U.S. at
704. The requirement was based on a study of mortality tables
which revealed that, on the average, the Department’s female
employees lived a few years longer than its male employees. Id. at
705. In footnote 20, Justice Stevens, writing for the Court,
interpreted the “any factor other than sex” exception to the Equal
Pay Act:
A variation on the Department’s fairness theme is the
suggestion that a gender-neutral pension plan would
itself violate Title VII because of its
disproportionately heavy impact on male employees. Cf.
Griggs v. Duke Power Co., 401 U.S. 424. This suggestion
has no force in the sex discrimination context because
each retiree’s total pension benefits are ultimately
determined by his actual life span; any differential in
benefits paid to men and women in the aggregate is thus
17
“based on [a] factor other than sex,” and consequently
immune from challenge under the Equal Pay Act . . . .
Id. at 710 n.20 (alteration in original).
The Court’s willingness to find that the Equal Pay Act’s “any
factor other than sex” exception precludes disparate impact
theories of liability under the Equal Pay Act is helpful to our
statutory construction of the ADEA. Many provisions in the ADEA
have their roots in the Fair Labor Standards Act and the Equal Pay
Act. See, e.g., Lorillard, 434 U.S. at 577-82 (discussing the Fair
Labor Standards Act as the “model” for the enforcement and remedial
provisions to the ADEA). Although legislative history on
§ 623(f)(1) is slim, we find it likely that the ADEA’s “reasonable
factors other than age” exception was spawned from the Equal Pay
Act’s “any factor other than sex” exception, especially given that
no parallel exception is found in Title VII.11
We recognize that the exceptions found in the ADEA and the
Equal Pay Act are not identical. The most notable difference,
emphasized by our colleague in dissent, is the inclusion of the
11
See Mack A. Player, Wards Cove Packing or Not Wards
Cove Packing? That Is Not the Question: Some Thoughts on Impact
Analysis Under the Age Discrimination in Employment Act, 31 U.
RICH. L. REV. 819, 833-34 (1997) (“Note the similarity of the
Equal Pay Act and ADEA ‘factor other than . . .’ defenses. Guess
the origins . . . . Until the mid-1970s the Secretary of Labor
administered and enforced the Equal Pay Act. The Secretary of
Labor was charged by Congress . . . to prepare a report on age
discrimination and recommend legislation to Congress. The
initial drafts of what eventually became the ADEA were thus
prepared by the Secretary of Labor . . . . It would seem,
therefore, that the Secretary who was then enforcing the Equal
Pay Act, lifted language and concept from the Equal Pay Act and
placed it in the ADEA.”).
18
word “reasonable” in the ADEA’s exception. However, we, like the
Eleventh Circuit in Adams, decline to infer from the inclusion of
the word “reasonable” that Congress meant to create an implicit
background rule that actions resulting in an age-disparate impact
are as a general matter proscribed. See 255 F.3d at 1325 n.6. As
we explained above, we believe the better reading is not that the
clause acts as a limited defense against disparate impact claims
but rather that the clause signals that impacts resulting from
neutral criteria not directly dependent on age are not prohibited
in the first place. At the very least, we recognize the
“reasonable factors other than age” exception as a clear textual
difference between the ADEA and Title VII regarding employer
liability – a distinction that, if nothing else, plainly
contradicts the argument that the cognizability of a disparate
impact claim under Title VII (as set forth in Griggs) controls the
cognizability of a disparate impact claim under the ADEA.12
12
Before turning to the legislative history of the ADEA,
we note that we do not share the dissent’s view of the import of
the Older Workers Benefit Protection Act, Pub. L. No. 101-433,
104 Stat. 978 (1990) (“OWBPA”). The OWBPA added a provision to
the ADEA requiring employers in certain circumstances to provide
laid off employees with data relating to the ages of employees
who are laid off versus those who retain their jobs. See 29
U.S.C. § 626(f). According to the dissent, such statistics would
have little use if the ADEA did not allow a disparate impact
cause of action. We would not draw that inference, however, for
such statistical evidence is quite useful in disparate treatment
cases. See Teamsters, 431 U.S. at 339; McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 805 (1973); Anderson v. Douglas & Lomason
Co., 26 F.3d 1277, 1285 (5th Cir. 1994). Moreover, the
legislative history of the OWBPA shows that Congress believed
that such statistics would help to alert discharged employees to
the possibility that they might have suffered disparate treatment
based on age. See H.R. REP. NO. 101-664, at 22 (1990) (expressing
19
(2) Legislative History and Policy Considerations
In addition to the § 623(f)(1) exception to the ADEA, strong
policy considerations, revealed in the legislative history of the
ADEA, underscore the differences between the ADEA and Title VII.
Because the broad remedial purpose behind Title VII was central to
the Court’s statutory construction of Title VII in Griggs, the
difference between the purposes behind the ADEA and Title VII is
directly relevant to whether a disparate impact theory is
cognizable under the ADEA.
Congress enacted the ADEA after receiving a 1965 report by the
Secretary of Labor regarding the problems of older workers. See
EEOC v. Wyoming, 460 U.S. at 230-31. For our purposes, it is
significant that the Secretary’s report finds “no evidence of
prejudice based on dislike or intolerance of the older worker” and
concludes that the main problem older workers faced in the
workplace was arbitrary age discrimination — namely explicit age
limitations — based on misconceptions about the abilities of older
workers. U.S. DEP’T OF LABOR, THE OLDER AMERICAN WORKER: AGE DISCRIMINATION
IN EMPLOYMENT 2, 6 (1965) (the “Report”), reprinted in EEOC, LEGISLATIVE
HISTORY OF THE AGE DISCRIMINATION IN EMPLOYMENT ACT 16 (1981) (hereinafter
LEGISLATIVE HISTORY). The Report further specifically finds that the
concept of age prejudice is unique and differs from the concept of
the concern that in large-scale layoffs, “an individual employee
would not reasonably be expected to know or suspect that age may
have played a role in the employer’s decision, or that the
program may be designed to remove older workers from the labor
force”).
20
race prejudice because the process of aging “is inescapable,
affecting everyone who lives long enough,” regardless of distinct
social and economic environments. Id. at 6. The Report likewise
distinguishes between “arbitrary discrimination” based on age and
other institutional arrangements that have a disproportionate
effect on older workers, finding that different solutions were
appropriate for these different problems. Id. at 21-25; see also
Mullin, 164 F.3d at 703 (describing the Report as “recommend[ing]
that arbitrary discrimination be statutorily prohibited, but that
systemic disadvantages incidentally afflicting older workers be
addressed through educational programs and institutional
restructuring”).13 These findings were “confirmed throughout the
extensive factfinding undertaken by the Executive Branch and
Congress” in conjunction with the enactment of the ADEA. EEOC v.
Wyoming, 460 U.S. at 230-01.
On January 23, 1967, the Secretary transmitted to Congress
13
We recognize that the Report found that discriminatory
practices were often “defended on grounds apparently different
from their actual explanation.” Report at 7. We disagree,
however, with the dissent’s conclusion that Congress therefore
must have intended to create a cause of action for disparate
impact. The practices to which the Report was referring were age
limitations, a form of disparate treatment. See id. Age
limitations were, in fact, the dominant form of arbitrary
discrimination addressed in the Report. Such restrictions are
“arbitrary,” according to the Report, in that they are based on
stereotype-driven assumptions about older workers rather than on
older workers’ actual abilities. Id. at 2, 8. When an
employer’s practices are motivated by neutral, non-age factors,
however, “the problem of inaccurate and stigmatizing stereotypes
disappears.” Hazen, 507 U.S. at 611. The mischief identified in
the Report is therefore more accurately targeted by a disparate
treatment theory, not a disparate impact theory.
21
proposed legislation entitled “Age Discrimination in Employment Act
of 1967.” Letter from W. Willard Wirtz to Hon. John W. McCormack
and Hon. Hubert H. Humphrey, Jan. 23, 1967, reprinted in LEGISLATIVE
HISTORY at 62-63. In this letter, the Secretary notes that the bill
“provides for attention to be given to institutional arrangements
which work to the disadvantage of older workers,” but that
“[r]easonable differentiations not based solely on age . . . would
not fall within the proscription” of the bill. Id. Instead, the
Secretary recommended that “research . . . be undertaken and
promoted with a view to reducing barriers to the employment of
older workers.” Id. at 63. The Report, this proposed bill, and
subsequent factfinding by the Executive Branch and Congress led
Congress to limit the purpose of the ADEA specifically “to
prohibit[ing] arbitrary age discrimination in employment.” 29
U.S.C. § 621(b).
In contrast to the refined purpose evidenced in the historical
underpinnings of the ADEA’s enactment, the Supreme Court’s opinion
in Griggs discusses Title VII’s broad remedial purpose. The
defendant company in Griggs instituted a policy of permitting
incumbent employees who lacked a high school education to qualify
for transfer from the labor and coal handling department to an
“inside” department by passing two tests of general intelligence –
“[n]either [of which] was directed or intended to measure the
ability to learn to perform a particular job or category of jobs.”
401 U.S. at 427-28. Prior to the effective date of Title VII, the
defendant had instituted a policy of “restricting Negroes” to the
22
labor and coal handling department in 1965. Id. at 427.
Chief Justice Burger, writing for the Court, held that
Congress’s objective in enacting Title VII was to “achieve equality
of employment opportunities and remove barriers that have operated
in the past to favor an identifiable group of white employees over
other employees.” Id. at 429-30. Based on this objective, the
Court held that “practices, procedures, or tests neutral on their
face, and even neutral in terms of intent, cannot be maintained if
they operate to ‘freeze’ the status quo of prior discriminatory
employment practices.” Id. at 430.
The cornerstone of Griggs’s holding that disparate impact is
cognizable under Title VII is thus the link between the history of
educational discrimination on the basis of race and the use of that
discrimination to continue to disadvantage individuals on the basis
of their race. Id. at 432 (stating that “good intent or absence of
discriminatory intent does not redeem employment procedures or
testing mechanisms that operate as ‘built-in headwinds’ for
minority groups and are unrelated to measuring job capability”);
see also Gunther, 452 U.S. at 178 (describing the “broad approach”
of Title VII as aimed at “overcoming and undoing the effect of
discrimination”) (internal quotation marks omitted). However,
absent from the scope of the ADEA are the historical and remedial
concerns that, in the Title VII context, led to the recognition of
disparate impact claims directed at overcoming the consequences of
past societal discrimination.
As Justice Stevens explained in his concurring opinion in
23
Washington v. Davis, 426 U.S. 229 (1976), it is “inappropriate
simply to transplant . . . standards in their entirety into a
different statutory scheme having a different history.” Id. at 255
(Stevens, J., concurring). We heed this advice today and therefore
follow the majority of circuit courts to have addressed this issue
in holding that a disparate impact theory of liability is not
cognizable under the ADEA. We find insufficient textual support
for the recognition of a disparate impact theory of liability in
the ADEA. Further, as we see it, the conclusion that the holding
in Griggs should be extended to the ADEA context based on the
similarities in the prohibitory sections of the ADEA and Title VII
ignores important considerations. It ignores the existence of
§ 623(f)(1) – an express exclusion of employer liability that is
present in the ADEA but not present in parallel form in Title VII
– and it ignores the differing purposes behind the ADEA and Title
VII.14
14
Although it was not essential to the Court’s holding in
Hazen Paper Co., there is language in the opinion that supports
our conclusion that a disparate impact claim is not cognizable
under the ADEA. There, a discharged employee (who was 62)
brought suit against his employers after they discharged him only
a few weeks before his pension rights were to vest, contending
that the employers’ decision was motivated by his age. 507 U.S.
at 606. The First Circuit affirmed the judgment for the
plaintiff employee, entered by the district court consistent with
the jury verdict in favor of the employee. Id. at 607. In so
doing, the court of appeals gave “considerable emphasis” to the
evidence of pension interference because, in the court of
appeals’s view, the jury could reasonably have found that age was
inextricably intertwined with the decision to fire the employee
before his pension rights vested. Id. The Supreme Court vacated
this judgment. Id. at 617. Importantly, the employee did not
base his claim for relief on a disparate impact theory of
liability. Id. at 610. Nonetheless, in holding that “an
24
IV.
THE PLAINTIFFS’ DISPARATE TREATMENT CLAIM
In contrast to the plaintiffs’ disparate impact claim, the
plaintiffs’ disparate treatment claim is cognizable under the ADEA.
A. McDonnell Douglas Framework
We have interpreted the now-familiar McDonnell Douglas
framework to apply to disparate treatment claims brought under the
ADEA. Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 395 (5th Cir.
2002). To make out a prima facie case of discriminatory treatment
based on age, the plaintiffs are required to prove: (1) they are
within the protected class; (2) they are qualified for the
position; (3) they suffered an adverse employment decision; and
(4) they were replaced by someone younger or treated less favorably
than similarly situated younger employees (i.e., suffered from
disparate treatment because of membership in the protected class).
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.
2002); see also Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir.
2002).
employer does not violate the ADEA just by interfering with an
older employee’s pension benefits that would have vested by
virtue of the employee’s years of service,” id. at 613, the Court
stated that “[d]isparate treatment . . . captures the essence of
what Congress sought to prohibit in the ADEA.” Id. at 610.
Further, the Court specifically discussed the decided purpose of
the ADEA — i.e., to prevent “arbitrary” discrimination based on
inaccurate stereotyping regarding older workers: “When the
employer’s decision is wholly motivated by factors other than
age, the problem of inaccurate and stigmatizing stereotypes
disappears. This is true even if the motivating factor is
correlated with age, as pension status typically is.” Id. at 611
(emphasis omitted).
25
If the plaintiffs make out their prima facie case, then the
burden of production shifts to the defendants to articulate a
legitimate, nondiscriminatory reason for the adverse employment
action. Tyler, 304 F.3d at 395. If the defendants meet this
burden of production, the inference of discrimination drops, and
the plaintiffs may then attempt to prove discrimination by offering
evidence that the defendants’ stated reason is pretextual. Id.
(“In a disparate treatment case . . . a plaintiff must produce
sufficient evidence to rebut a showing by the employer that there
was a legitimate, non-discriminatory reason for [differentially
treating] a particular employee.”).
Here, the district court dismissed the plaintiffs’ disparate
treatment claim because the plaintiffs could not make out their
prima facie case based on the evidence available to them at the
time their responsive briefing was filed. The district court cited
this evidence as consisting of: (1) evidence that the Personnel
Director for the City of Jackson, Dr. George Terry, represented
that the plan considered tenure only once; and (2) evidence that
certain officers were subjected to age-related comments by Dr.
Terry, Officer Deric Hearn, and Deputy Chief Cleon Butler. The
district court additionally held that the plaintiffs’ evidence, as
a matter of law, was insufficient to disprove the defendants’
legitimate nondiscriminatory reasons for their employment decision
– to bring starting salaries for police officers up to the regional
average, to develop a more generous pay scale within the confines
of the city budget, and to consider tenure in the pay scale.
26
B. The Plaintiffs’ Pending Motions
When the district court dismissed the plaintiffs’ disparate
treatment claim, two motions were pending: (1) a “motion for
sanctions, a default judgment, attorneys’ fees and expenses, expert
witness fees and a continuance,” filed by the plaintiffs on June 5,
2002; and (2) a “motion to strike exhibits to defendants’ motion
for summary judgment,” filed by the plaintiffs on July 11, 2002.
The June 5, 2002, motion sought comparative wage data relating
to the plan, as originally implemented in October 1998 and as
revised in March 1999. It also sought to compel disclosure of any
related fiscal and personnel discovery in accordance with the order
of the magistrate judge granting the plaintiffs’ motion to compel.
Finally, the motion sought a continuance of the discovery period in
order to allow the defendants to produce discovery materials
previously requested and to allow the plaintiffs an opportunity to
further develop their case based on this new evidence.
The July 11, 2002, motion sought to strike certain exhibits
from the defendants’ motion for summary judgment, in part because
as to certain of these data produced as exhibits, “[t]he counsel
for the Defendants [had] insisted that no such wage data existed,”
and “these data’s purported existence and importance were never
provided to the Plaintiffs until it was utilized by an Expert for
the Defense.”
Curiously, the district court did not rule on these motions.
Instead, in deciding to grant the defendants’ motion for summary
judgment, the district court simply considered the evidence
27
available to the plaintiffs at the time of their responsive
briefing. After granting summary judgment in favor of the
defendants as to the plaintiffs’ disparate treatment claim, the
court then disposed of the plaintiffs’ pending motions by stating
that “[b]ecause the Court finds that Plaintiffs cannot meet their
burden of proof for claims of disparate treatment under the ADEA,
the other motions of Plaintiffs in opposition to the Motion of
Defendant for Summary Judgment related to claims for disparate
treatment are moot.”
On appeal, the plaintiffs contend that the dismissal of their
disparate treatment claim was premature because they “were not
allowed to enforce their requests for discovery or to complete
scheduled depositions that had been recessed when the plaintiffs
learned that significant information had been willfully withheld
from them.”
C. Analysis of the District Court’s Conclusions
The district court may have conflated the plaintiffs’ burdens
of production and persuasion in concluding that the plaintiffs
failed to meet their burden of demonstrating a genuine fact issue
regarding their disparate treatment claim.15 However, we need not
15
For example, although not ultimately relevant to our
determination on appeal, the district court required that the
plaintiffs prove, as part of their initial prima facie burden,
“unlawful motive” to discriminate because of age instead of
requiring that the plaintiffs demonstrate replacement by someone
younger or differential treatment of younger, similarly situated
officers. See Sandstad, 309 F.3d at 897. The district court
also appears to have used pre-Reeves case law in discussing the
plaintiffs’ ultimate burden of proving unlawful discrimination
under the ADEA. See, e.g., Ross v. Univ. of Tex. at San Antonio,
28
address this issue because, upon review, we agree with the
plaintiffs that summary judgment on the plaintiffs’ disparate
treatment claim was premature in light of the plaintiffs’ pending
motions before the district court, particularly given the
allegation included in these motions that the defendants have
failed to comply with the order of the magistrate judge.
The magistrate judge clearly ordered the defendants to turn
over various discovery documents, including documents that were
responsive to the plaintiffs’ initial disclosure request. These
documents apparently include the working papers used by city
officials in drafting the new and revised plans, as well as
evidence regarding comparative wage data – including memoranda and
other documentation related to the March 1, 1999, City of Jackson
Pay Plan Revision, signed by all pertinent department heads, the
existence of which was initially denied by the defendants. The
plaintiffs allege that this evidence provides additional
documentation verifying the extent of the disparity between wage
increases for officers under the age of forty and officers over the
age of forty. The plaintiffs also allege that this evidence
139 F.3d 521, 525 (5th Cir. 1998). As the Supreme Court stated
in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148
(2000), “a plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is
false, may permit the trier of fact to conclude that the employer
unlawfully discriminated.” Further, the district court here
apparently declined, without discussion, to consider any of the
plaintiffs’ evidence that the plan resulted in a disparity of
four standard deviations between workers over forty and workers
under forty. Such statistical evidence can be relevant to a
claim of intentional discrimination. See supra note 12.
29
provides them with documentation regarding the defendants’
knowledge that, at least at the time the defendants revised the
plan, the plan would result in inferior pay status for older
workers when compared to younger workers. This evidence appears to
us to be relevant to the plaintiffs’ prima facie case and to their
ultimate burden required to counter the defendants’ proffered
reasons for implementing the pay plan.8 While much of this
evidence relates primarily to the plaintiffs’ now-dismissed
disparate impact claim, the impact evidence may also support a
permissible inference of intentional discrimination and, as the
plaintiffs argue, may relate to whether one of the defendants’
proffered justifications – to bring salaries up to the regional
average – is false.
We do not decide whether the defendants have, in fact, failed
to comply with the magistrate judge’s order, whether the motion to
continue discovery should be granted, or whether the plaintiffs’
other pending motions have merit. Rather, we simply hold that the
district court should have addressed these motions before it ruled,
on an apparently incomplete summary judgment record, that the
plaintiffs had not met their burden of demonstrating the existence
of genuine fact issues regarding their disparate treatment claim.
If the defendants did not comply with their discovery obligations
8
Our ability to determine the degree to which this
requested evidence will ultimately benefit the plaintiffs is made
difficult by the absence in the record of the parties’ briefs in
support of and against the defendants’ motion for summary
judgment and the failure of the plaintiffs to request that these
briefs be supplemented to the record on appeal.
30
such that the plaintiffs were prohibited from presenting their best
case to the district court, summary judgment in favor of the
defendants improperly denied the plaintiffs an opportunity to
continue discovery and supplement the record. Sunbelt Sav., FSB v.
Montross, 923 F.2d 353, 357, 358 (5th Cir. 1991) (holding that
summary judgment was premature when discovery was still pending).
The history of the discovery disputes plaguing this case and
the existence of pending motions alleging that the plaintiffs’
ability to present their best case was significantly hindered by
the defendants’ failure to comply with their discovery obligations
convinces us that the summary judgment dismissal of the plaintiffs’
disparate treatment claim was premature. On remand, the district
court may want to take into account, in ruling on the pending
motions, our decision on the viability of the disparate impact
claim.
V.
CONCLUSION
We AFFIRM in part, VACATE in part, and REMAND the case to the
district court. Costs shall be borne by appellees.
31
CARL E. STEWART, Circuit Judge, concurring in part, dissenting in
part:
While I agree with the majority’s disposition of plaintiff’s
disparate treatment claim in Part IV of the opinion, I also believe
that the district court erred in improvidently dismissing the
plaintiff’s disparate impact claim and, therefore, I must dissent
with regard to Part III.
This marks the first time our court has had to squarely
decide, in the aftermath of Hazen Paper v. Biggins, 507 U.S. 604
(1993), whether a disparate impact claim may be formulated under
the ADEA. I, however, am not thoroughly convinced by the
majority’s attempt to distinguish between two statutes–the ADEA and
Title VII–whose text is virtually the same, that Congress meant to
imply a disparate impact claim to the latter, but to preclude such
a claim in the former. Equally, I am not persuaded by the
majority’s emphasis on the “reasonable factors other than age”
(“RFOA”) exception. When Congress enacted the ADEA in 1967, the
courts had yet to develop a disparate impact theory. Thus, at the
time of enactment, it appears that Congress most likely intended
the RFOA to apply solely to claims of disparate treatment. Based
upon a close reading of the text, the relevant legislative history,
subsequent legislative actions, and concerns of public policy, I
submit that a proper interpretation of the ADEA allows a disparate
impact cause of action.
I. STATUTORY INTERPRETATION OF THE ADEA
The majority’s analysis begins with the premise that the RFOA
exception of the ADEA facially appears as a safe harbor to
employers. To the majority, the language of the RFOA exception
clearly rejects the theory of disparate impact. The majority
relies in part on a pre-Hazen dissent by Judge Easterbrook in Metz
v.Transit Mix, Inc., for the proposition that the RFOA exception is
“incomprehensible unless the prohibition forbids disparate
treatment and the exception authorizes disparate impact.” 828 F.2d
1202, 1220 (7th Cir. 1987) (emphasis added).
Contrary to the majority’s conclusion, it is not at all clear
from the text that the RFOA exception has no alternative
interpretation other than to preclude disparate impact. The RFOA
exception aside, the language of the ADEA and Title VII are similar
in every other respect. Thus, I cannot conclude, in the absence of
expressed language to the contrary, that Congress meant to apply
the disparate impact theory to Title VII, but not to the analogous
language of the ADEA. Until the United States Supreme Court
expressly rules on this issue, I continue to believe that the
majority viewpoint is in error. Despite the obvious similarities
between Title VII and the ADEA, today’s majority joins our fellow
33
courts of the First,9 Third,10 Sixth,11 Seventh,12 Tenth,13 and
Eleventh14 Circuits in disclaiming a disparate impact theory under
the ADEA.
As shown through persuasive precedent from other circuits,
however, there is another side to this debate. For example, while
acknowledging that post-Hazen the availability of disparate impact
claims under the ADEA is unsettled among the circuits, the Second
Circuit held that it “generally assesses claims brought under the
ADEA identically to those brought pursuant to Title VII, including
disparate impact.” Smith v. Xerox, 196 F.3d 358, 367 n.5 (2d Cir.
1999). The Second Circuit is not alone. The Eighth Circuit has
also stated that it “continues to recognize the viability of . . .
[ADEA disparate impact] claims.” Lewis v. Aerospace Cmty. Credit
Union, 114 F.3d 745, 750 (8th Cir.1997); See also EEOC v. McDonnell
Douglass Corp., 191 F.3d 948, 950 (8th Cir. 1999) (stating that
“the law of this circuit is that disparate impact claims are
9
Mullin v. Raytheon Co., 164 F.3d 696, 703-04 (1st Cir.
1999) cert. denied, 528 U.S. 811, 120 S. Ct. 44, 145 L. Ed. 2d 40
(1999).
10
DiBiase v. Smithkline Beecham Corp., 48 F.3d 719, 732 (3d
Cir. 1995).
11
Lyon v. Ohio Educ. Ass’n and Prof’l Staff Union, 53 F.3d
135, 139 n.5 (6th Cir. 1995).
12
EEOC v. Francis W. Parker School, 41 F.3d 1073, 1076-77
(7th Cir. 1994).
13
Ellis v. United Airlines, Inc., 73 F.3d 999, 1006-07
(10th Cir. 1996).
14
Adams v. Fla. Power Corp., 255 F.3d 1322, 1325 (11th Cir.
2001).
34
cognizable under the ADEA”). Thus, precedent from other circuits
show that a contrary facial interpretation of the RFOA is
reasonable.
Moreover, the strongest argument against the language of the
RFOA exception precluding disparate impact lies in the substantive
provisions of the ADEA and Title VII. In a similar case, a
concurrence by Eleventh Circuit Judge Barkett acutely noted:
[I]n every statutory discrimination case, a decision
based upon legitimate business necessity will never
support a claim for liability. Griggs itself recognized
and repeatedly emphasized that disparate impact is a
basis for relief only if the practice in question is not
founded on “business necessity,” or lacks “a manifest
relationship to the employment.” [401 U.S. 424, 430-31
(1971)]. [The RFOA exception] of the ADEA adds nothing
new.
. . . In light of the parallels between the substantive
provisions of the ADEA and Title VII, and in light of the
fact that Congress has amended the ADEA several times but has
never explicitly excluded disparate impact claims, a
reasonable interpretation of the [RFOA exception] is that
it codifies the business necessity exception to disparate
impact claims.
Adams, 255 F.3d at 1327-28 (Barkett, J., concurring).
35
I find Judge Barkett’s reasoning fully persuasive. Under a theory
of disparate impact, employers will still be able to have
employment practices and policies that may burden over-age workers
in a disproportionate way. These practices will be permissible,
despite the disproportionate impact, provided the employer shows
they are supported by a business necessity. Upon proving business
necessity, the burden shifts to the employee to show that the
practice in question was established not because of the legitimacy
of the necessity, but merely as a pretext for invidious
stereotyping. Therefore, I am not persuaded that adopting a
disparate impact theory will lead to any inconsistencies with the
RFOA exception.
That said, the cornerstone of the majority’s holding relies on
an analogous provision in the Equal Pay Act (“EPA”). Because the
RFOA exception does not exist under Title VII, the majority looks
instead to the EPA, which precludes disparate impact claims via its
“any factor other than sex” language. The majority attempts to
show that the similarities between the RFOA and EPA “any factor”
exception should be construed by courts to demonstrate that the
RFOA should similarly prohibit disparate impact. See Washington v.
Gunther, 452 U.S. 161, 170 (1981) (juxtaposing the EPA’s “any
factor other than sex” language with Title VII’s broadly inclusive
prohibition against gender discrimination and stating that the
language “confine[d] the application of the Act to wage
differentials attributable to sex discrimination.”).
36
The flaw in the majority’s logic is that the terms “any” and
“reasonable” are not synonymous. Under the ADEA, an employer with
a disparate impact policy may be liable for age discrimination if
factors relied on were not reasonable. Pursuant to the EPA,
however, if an employment policy causes wage differences among men
and women workers, the employer will not be liable unless the
policy in question was based solely on gender. Thus, the ADEA and
EPA exceptions cannot be read to have the same meaning unless the
word “reasonable” is omitted from the RFOA exception. In this
light, the premise of the majority opinion appears little more than
ironic in that when it compares statutory language of the ADEA and
Title VII to preclude disparate impact, the court advocates a
dissimilar reading of almost identical statutes. Yet, when
comparing the ADEA to the EPA, with the intent of precluding
disparate impact, the majority applies a similar reading of
exceptions which differ significantly. I disagree with the
majority’s analytical approach and its reading of Gunther as
indicating that the ADEA cannot bar some “reasonable factors other
than age” practices which have a disparate impact on workers over
forty.
Additionally, the majority’s contention that the ADEA and
Title VII are not similar statutes, insofar as their application of
the disparate impact theory, disregards the doctrine of in pari
materia. It has long been held that judicial interpretations of
one statute may be informed by interpretations of similar statutes.
Lorillard v. Pons, 434 U.S. 575, 580-81 (1978) (“[When] Congress
37
adopts a new law incorporating sections of a prior law, Congress
normally can be presumed to have had knowledge of the
interpretation given to the incorporated law, at least insofar as
it affects the new statute.”). Under this well established
statutory canon, “the interpretation of one statute may be
influenced by language of other statutes which are not specifically
related, but which apply to similar persons, things, or
relationships.” Nat. Fed’n of Fed. Employees v. Dep’t. of
Interior, 119 S. Ct. 1003, 1013 (1999) (defining the doctrine of in
pari materia, citing several cases where the Court applied this
doctrine to aid in its construction of a variety of statutes, and
arguing that the doctrine was now “well established”) on remand,
174 F.3d 393 (4th Cir. 1999).
In the context of the ADEA and Title VII, adhering to this
canon is particularly well suited because, as the majority
concedes, the ADEA grew out of debates on Title VII. Furthermore,
in pari materia has relevance because both aforementioned statutes
apply to similar persons (here, the employees) and similar
relationships (here, the employment context). Moreover, Congress
carefully chose identical language for its statutes dealing with
both discrimination against older workers and discrimination
against those due to race or gender. Therefore, the majority
should have applied the doctrine of in pari materia and interpreted
the disparate impact theory as applicable to the ADEA.
II. THE ADEA LEGISLATIVE HISTORY
38
My second point of disagreement with the majority concerns its
portrayal of the legislative history of the ADEA. The majority
opinion subtly recognizes that the legislative history of the ADEA
is not directly on point. Although the majority’s opinion properly
recognizes that the Supreme Court’s 1971 endorsement of the
disparate impact theory in Griggs, 401 U.S. at 430-31, was later in
time than Congress’s enactment of the ADEA in 1967, the majority
attempts to support its position by focusing on the underlying
purposes of the legislation.
Although the language of Title VII and the ADEA are almost
identical, the majority essentially dismisses Griggs as irrelevant
to the calculus of age discrimination. The majority distinguishes
Griggs from the ADEA on the grounds that Griggs interpreted
Congress’s intent underlying Title VII as sweeping in nature. The
majority argues, “[i]n contrast to the refined purpose evidenced in
the historical underpinnings to the ADEA’s enactment, the Supreme
Court’s opinion in Griggs discusses Title VII’s broad remedial
purpose.” While it is undoubtably true that Griggs recognized
disparate impact theory as an available tool in the employment
discrimination toolbox to remedy past discrimination under Title
VII, it does not necessarily follow, as the majority asserts, that
the disparate impact tool is available only in a remedial context.
I disagree in two respects with the majority’s holding that
disparate impact theory should be limited to the context of Title
VII. First, the textual similarity between Title VII and the ADEA
39
evinces a congressional intent to provide similar protection
against employment discrimination under the two statutes. Second,
it is arguable whether historical discrimination should be a
necessary precondition for recognizing a disparate impact theory.
I acknowledge, as the majority does, that the ADEA and Title VII
are distinct because the former lacks a history tied to past
discrimination. In the absence of a clear statement to the
contrary, however, I cannot assume that Congress intended to limit
the remedial measures available under anti-discrimination statutes
with almost identical language merely because the statutes arose
out of distinct historical contexts. The Supreme Court in Griggs,
for example, did not posit historical discrimination as the sole
reason for disparate impact under Title VII; Griggs merely held
that a showing of disparate impact was available to remedy this
type of discrimination. See Jennifer J. Clemons and Richard A.
Bales, ADEA Disparate Impact in the Sixth Circuit, 27 Ohio N.U. L.
Rev. 1, 23 (2000). Moreover, the majority’s emphasis on the
historical posture of the ADEA and Title VII unduly minimizes the
statutes shared aim of ridding from the workplace an environment of
concealed discrimination. Griggs, 401 U.S. at 431 (stating that
Title VII “proscribes not only overt discrimination but also
practices that are fair in form, but discriminatory in operation”);
EEOC v. Wyoming, 460 U.S. 226, 231 (1983) (stating that the ADEA
seeks to remedy “arbitrary” forms of age discrimination “based in
large part on stereotypes unsupported by objective facts, and often
defended on grounds different from its actual causes”). Consistent
40
with such an aim, a disparate impact theory may be a plaintiff’s
only tool in counteracting sophisticated discrimination.
Therefore, due to the similarity of the ADEA and Title VII
language, it is my view that the protection available under both
statutes, including that from disparate impact, should also be
similar.
The majority ignores the fact that Griggs does not stand alone
as the only relevant decision applying disparate impact theory.
Under Supreme Court precedent, the disparate impact theory has
grown beyond its original purpose of alleviating racial
discrimination claims. See Dothard v. Rawlinson, 433 U.S. 321,
329-32 (1977) (applying disparate impact theory to Title VII sex
discrimination claims). Furthermore, under the 1991 Civil Rights
Act, 42 U.S.C. § 2000-e2(k)(1)(A)(I) (1994), disparate impact
claims are readily available not only to plaintiffs alleging racial
discrimination, but also to those claiming discrimination on the
basis of gender, national origin, and religion.15 In light of these
15
Title VII of the Civil Rights Act of 1964, as
amended by the Civil Rights Act of 1991, provides in
pertinent part:
Sec. 703. (k)(1)(A) An unlawful employment
practice based on disparate impact is
established under this subchapter only if–
(i) a complaining party demonstrates that a
respondent uses a particular employment
practice that causes a disparate impact on the
basis of race, color, religion, sex, or
national origin and the respondent fails
to demonstrate that the challenged practice is
job related for the position in question and
consistent with business necessity;
41
developments, I cannot agree with the majority that the ADEA must
be limited solely to disparate treatment claims.
I also do not agree with the majority’s interpretation of the
most prominent documentation of all ADEA legislative history, the
Wirtz Report.16 The majority uses the Report to bolster its
argument that the ADEA was not premised on eradicating past
discrimination. The flaw with the majority’s use of this most
critical evidence of congressional intent is its failure to
acknowledge the argument, embodied within the Wirtz Report, that
age discrimination was in fact “based in large part on stereotypes
unsupported by objective fact, and was often defended on grounds
different from its actual cause.” See EEOC , 460 U.S. at 231.
The aforementioned conclusion seems to indicate that the ADEA’s
purpose may not have been limited to eradicating animus, as the
majority suggests. Rather, and in contrast to the majority’s view,
the Wirtz Report indicates that Congress merely intended to utilize
the ADEA to eliminate stereotypes that workers’ productivity
. . . .
42 U.S.C. § 2000e-2 (2003).
16
The term “Wirtz Report” refers to a congressional report
commissioned by the former Department of Labor Secretary W.
Willard Wirtz which, pursuant to section 715 of Title VII,
instructed the Secretary of Labor to conduct a study with
recommendations for “legislation to prevent arbitrary
discrimination in employment because of age.” The origins of
the ADEA’s rationales and objectives can be traced to the
resulting report entitled, The Older American Worker: Age
Discrimination in Employment (1965). See also EEOC, 460
U.S. at 229-31 (tracing legislative history of the ADEA and
central role of the Secretary of Labor Report).
42
declines with age. That said, I acknowledge that the Wirtz Report
is supportive evidence of Congress’s intent concerning the ADEA and
that the Report did in fact distinguish age discrimination as
“rarely based on the sort of animus motivating some other forms of
discrimination.” My position merely suggests that because the
Wirtz Report sheds the best light on Congress’s intent in enacting
the ADEA, a point the majority does not refute, this Report
arguably provides more support for affirming, rather than denying,
that the ADEA contains a disparate impact cause of action.
Furthermore, the legislative intent indicating that Congress
meant to allow the disparate impact theory in ADEA actions may be
discerned from a Congressional amendment. In 1994, Congress
amended the ADEA by adding the Older Workers Benefit Protection Act
(“OWBPA”). 29 U.S.C. § § 623, 626, 630(f) (1994). The statute
requires an employer to provide the employee with information
regarding the ages of workers offered severance pay and those who
were not let go before the employee waives any potential
discrimination claims. 29 U.S.C. § 626(f)(1)(E)-(G), (H)(ii)
(1994). These statistics, comparing the ages of those terminated
and those retained, would be of little relevance if the employee
could not bring a disparate impact claim. Therefore, the addition
of the OWBPA is additional evidence that the disparate impact
theory should be available under the ADEA.
III. CONCLUSION
The majority today fails to heed the Griggs recognition that
in a complex society, not all discrimination is apparent or overt.
43
Often, such discrimination will be subtle and concealed. The
practical consequence of the majority’s decision is that it will
allow an employer to exclude older workers from lower-level jobs
simply on the basis of pretext, without an additional tool at the
employee’s disposal to counteract such sophisticated discriminatory
acts. Contrary to the majority’s stance, I agree with the Supreme
Court’s determination in Hazen that the disparate impact liability
was designed to detect employment decisions that reflect
“inaccurate and stigmatizing stereotypes.” 507 U.S. at 610. Thus,
I find no incompatibility with using disparate impact theory to
prove liability under the ADEA.
Instead, I am concerned that by not allowing a disparate
impact cause of action under the ADEA, the majority has essentially
held such plaintiffs to the heightened evidentiary standard of
Washington v. Davis, 426 U.S. 229 (1976), where sophisticated and
concealed discrimination must be proved solely through intentional
acts. The majority, however, fails to fully absorb the spirit of
Justice Stevens’s concurrence in Davis that “the line between
purpose and discriminatory impact is not nearly as bright, and
perhaps not quite as critical, as the reader of the court’s opinion
may assume.” Id. at 254. Applied to our context, Justice
Stevens’s concurrence demonstrates that the majority’s opinion,
which distinguishes between intentional discrimination based on
disparate treatment on the one hand and a disparate impact cause of
action absent proof of intent on the other, may not be as clear as
44
the majority seems to opine. Therefore, with regards to Part III
of the majority opinion, I respectfully dissent.
45
Smith v. City of Jackson MS
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-12-05
Citations: 351 F.3d 183
Copy CitationsCombined Opinion