U.S. SUPREME COURT LIGHTENS BURDEN
FOR EMPLOYEES SEEKING TO PROVE AGE DISCRIMINATION

On March 30, 2005, in Smith v. City of Jackson, the U.S. Supreme Court eased the path for employees seeking to prove a violation of the Age Discrimination in Employment Act ("ADEA") by ruling that individuals age 40 and over can prevail on an age claim even if their employer did not intend to discriminate on the basis of age. Previously, to prove age discrimination under the ADEA, older workers had to establish that their employer had intentionally discriminated against them—that is not the case anymore.

In Smith, police and public safety officers over the age of 40 sued the City of Jackson, Mississippi and the city police department in federal district court. The officers alleged the police department's salary plan violated the ADEA because the plan gave officers with five or fewer years of tenure larger raises than those with more than five years of tenure. The net result was that officers over the age of 40 received smaller salary increases than those under 40.

The officers alleged both a "disparate treatment" claim, that the city deliberately discriminated against them based on age, and a "disparate impact" claim, that they were "adversely affected" by the plan because of their age. The federal district court and the Fifth Circuit Court of Appeals ruled disparate-impact claims could not be made under the ADEA, i.e. that an employer cannot be held liable for age discrimination if it did not intend any harm. The U.S. Supreme Court, however, disagreed, ruling that disparate-impact claims may be brought under the ADEA.

Despite its holding, the Court ultimately dismissed the officers' claims, finding that the officers did not set forth a valid disparate-impact claim. The Court emphasized that the officers did not identify any specific test, requirement or practice within the pay plan that had an adverse impact on older workers. Also, the Court found that the City's plan to grant a larger raise to lower rank employees for the purpose of bringing their salaries in line with that of surrounding police forces was based on legitimate non-discriminatory business reasons.

Although this decision is a significant legal development for employers with operations outside California, California Government Code section 12941 already recognizes that a disparate impact theory may be used to establish a claim of age discrimination under the Fair Employment and Housing Act. Accordingly, the legal effect of Smith on California employers is somewhat insignificant.

The practical effect, however, could be a renewed interest, in California and elsewhere, by attorneys who represent employees in bringing age discrimination lawsuits. Accordingly, employers are encouraged to review their employment policies and procedures to ensure that they do not disproportionately impact older applicants and workers.