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The Supreme Court held 3/30/05 that the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634, authorizes recovery on a so-called “disparate impact” theory, but that the scope of disparate impact liability under the ADEA is narrower than under Title VII of the Civil Rights Act of 1964. Four Justices interpreted the ADEA to authorize disparate impact claims, and Justice Scalia concluded that this interpretation has been adopted by the EEOC and is entitled to deference. Three Justices concluded that disparate impact claims are not cognizable under the ADEA, and the Chief Justice did not participate. In holding that the standards under the ADEA and Title VII are different, the Court concluded that its prior holding in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), which narrowly construed employers’ exposure to liability on a disparate impact theory under Title VII, applies to ADEA claims even though Title VII has been amended to supersede Wards Cove. The Court also emphasized the ADEA’s express provision that it is not unlawful for an employer to make a decision based on “reasonable factors other than age.” The Court explained that this reasonableness test does not include a “business necessity” test, which asks whether there are other ways for the employer to achieve its goals. In her concurring opinion, Justice O’Connor agreed that disparate impact claims, if allowed under the ADEA, are strictly limited to circumstances where the challenged employment practice is not rationally related to some legitimate business objective. Applying the ADEA standards to the case before it, the Court determined that the employee petitioners did not have an ADEA disparate impact claim against the respondent, the City of Jackson, which was represented by Jones Day. This case is important to any employer that may be sued under the ADEA.

Decision Below: 351 F.3d 153 (5th Cir. 2003).