The U.S. Supreme Court has just dismissed a case that would have decided a longstanding question of whether disparate impact claims are available under the Age Discrimination in Employment Act (ADEA). Adams v. Florida Power Corp. What this means for employers is that, in the Eleventh Circuit at least, plaintiffs will not be able prevail on ADEA suits unless they can show that the employer intended to discriminate against them because of their age. There are two basic types of discrimination claims: disparate impact and disparate treatment. Disparate treatment claims require the person complaining to show that the employer intended to discriminate against him or her when it took the questionable employment action. Disparate impact claims do not require proof of intentional discrimination. Instead, disparate impact claims are based on the theory that an employer’s policy that appears neutral on its face actually affects a protected group more harshly than an unprotected group. Disparate impact claims are available under Title VII, but the federal appeals courts are divided on whether they are available under the ADEA. The ADEA’s language is slightly different from that of Title VII because it allows an employer to make decisions based on “reasonable factors other than age.” Courts that do not permit disparate impact claims under the ADEA rely on this language. The First, Seventh, Tenth, and Eleventh Circuits do not allow disparate impact claims under the ADEA. The Second, Eighth, and Ninth Circuits have allowed them. The Supreme Court’s dismissal of the case surprised many labor and employment attorneys because the Court had heard oral argument in the case and because of the split among the circuits on this issue. Investigating suspected employee theft, monitoring telephone usage, and random drug testing are just a few of the common practices used by employers to increase productivity and ensure safety in the workplace. Employers are…
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