March 01, 2011

In this article, Jenner & Block Partner Carla J. Rozycki and Of Counsel Emma J. Sullivan review  the differences between disparate-impact claims brought under Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act (ADEA); analyze disparate-impact ADEA claims after the Supreme Court decisions in Smith v. City of Jackson and Meacham v. Knolls Atomic Power Laboratory; examine the EEOC’s proposed rules regarding the scope of the “reasonable factor other than age” defense; and explain the practical difficulties of successfully prosecuting disparate-impact ADEA claims.  Despite the authors’ view that plaintiffs will likely continue to face an uphill battle when bringing disparate-impact ADEA claims, they conclude that prudent employers should still scrutinize any employment decisions that may cause a disparate impact on the basis of age.  They also recommend that employers provide their supervisors with objective criteria for making employment decisions whenever feasible.