You may challenge objective criteria such as physical, degree or testing requirements under a theory of disparate impact age discrimination. Subjective criteria may also form the basis of a disparate impact discrimination claim. Once you have shown evidence of its disproportionate impact on older workers, your employer will be allowed to defend itself by challenging the evidence that you have offered or by proving that the policy or practice is related to the job and constitutes a business necessity. Even if your employer is able to prove that it has a business necessity, you may still prevail if you are able to prove that there was an alternative practice or policy that would have had less of a disparate impact on older workers.

The first case involving disparate impact

Prior to 1965 when Title VII of the Civil Rights Act of 1964 was made effective, a North Carolina plant discriminated openly against African-American workers. They could only be employed as laborers, and the highest-paying positions that were available to them paid less than even the lowest-paying jobs in the other departments of the plant.

When Title VII was enacted, the company stopped overtly segregating its employees. Instead, it started requiring that applicants had to have a minimum of a high school diploma or had to receive satisfactory scores on two IQ tests. Thirteen employees sued, claiming that the requirements constituted discrimination. The Supreme Court ruled in the workers’ favor, ruling that tests, procedures and practices that may be facially neutral may still be discriminatory if they have a disparate impact on members of a protected class.

Rules for age discrimination claims

It wasn’t completely clear whether or not discrimination that had a disparate impact on older workers was prohibited until the Supreme Court’s decision in 2005 in Smith v. City of Jackson. In that case, the court ruled that people could sue for age discrimination if a facially neutral policy or practice has a disparate impact on older people. The proof requirements for the employee and employer differ, however.

In cases involving age discrimination, the plaintiffs must identify a specific practice that resulted in the disparate impact. The employer may be found to be not liable if it can prove that the practice was based on a reasonable factor other than age. The Equal Employment Opportunity Commission has issued regulations in order to clarify the factors that judges should consider when they are making decisions about a RFOA (Reasonable Factors Other Than Age) defense.

Conatact Our Discrimination Attorneys

Discrimination is hard to prove, and there are multiple time frames and filing requirements to navigate. If you believe that your employer’s policy or practice caused you to suffer discrimination based on a disparate impact on your age group, you may need legal help. Call Swartz Swidler to talk to an experienced employment law attorney about your case.