Adams v. Florida Power Corp. and the trend of lowering an employer's burden of proof to rebut age discrimination claims

Brigham Young University Law Review, 2003 by Brough, Daniel K

I. INTRODUCTION

In 1992, Congress enacted the Energy Policy Act, which opened the energy industry to competition and forced the Florida Power Corporation, once a publicly regulated utility monopoly, to reorganize.1 In the course of those reorganizations, the Florida Power Corporation terminated Wanda Adams and 117 others, all of whom were over forty years of age.2 The terminated employees formed a class and sued the Florida Power Corporation and its parent corporation, the Florida Progress Corporation, on a theory of disparate impact.3 The district court certified the class of plaintiffs, but later decertified it and ruled that as a matter of law, without making findings of fact, disparate impact cannot form a basis for liability under the Age Discrimination in Employment Act (ADEA).4 Adams and her fellow employees appealed the district court's decision to the Eleventh Circuit Court of Appeals.5 The Eleventh Circuit affirmed the district court's ruling, holding that the ADEA precludes disparate impact liability. In doing so, it took a stand on an issue that has caused a pervasive circuit split:6 it is generally recognized that the ADEA prohibits disparate treatment of workers because of their age,7 but the federal circuits are split on whether the ADEA prohibits disparate impact as well.8 The issue is crucial: whether plaintiffs seeking relief under a theory of disparate impact can recover for age discrimination will have a serious effect on the scope of the ADEA, which will likely be increasingly litigated as more workers continue to work past retirement age.9

This Note argues that the Eleventh Circuit correctly held that the ADEA precludes disparate impact claims, but that the court's analysis illuminates a judicial tendency to dilute the ADEA's reasonable factors test. In the past, that trend had been perpetuated by applying Title VII's tripartite burden-shifting scheme10 to ADEA cases, but the Adams decision dilutes the reasonable factors test by analogizing between the ADEA and the Equal Pay Act (EPA). However it is accomplished, such a dilution makes it easier for allegedly infringing employers to justify their actions and is in contravention of Congress's intent in enacting the ADEA. The Eleventh Circuit should have instead relied on an alternative plain language argument-presented in this Note-to resolve the claims of the terminated Florida Power Corporation employees. Part II of this Note provides background into the ADEA's pertinent provisions and the definition of disparate impact. Part III outlines the history of disparate impact vis-a-vis the ADEA and explains the Eleventh Circuit's decision in Adams. Part IV identifies the accepted judicial application of Title VII burden-shifting to the ADEA-an application that, in some instances, may allow employers to escape discrimination liability without meeting the statutory requirement to show that the allegedly discriminatory employment action was based on reasonable factors other than age, thereby diluting the ADEA's reasonable factors test. Part IV will also show how the Eleventh Circuit demonstrated this judicial tendency to weaken the ADEA's reasonable factors defense by analogizing between the ADEA and the EPA,11 as well as how that analogy may illustrate a new rationale for lowering a defendant employer's burden of proof. Diluting the ADEA's reasonability requirement to any degree beyond that evinced in the Act's statutory language is impermissible because it makes it easier for allegedly infringing employers to defend themselves against the discrimination liability that Congress intended them to face; in cases where plaintiff employees do not have sufficient evidence to prove that the defendant's proffered reasons for its allegedly discriminatory action are pretextual, a defendant can escape liability without the statutorily-required showing of reasonable factors other than age. The burden-shifting scheme that has produced this result is inapplicable in ADEA contexts, and reducing an employer's burden by any means allows employers to escape liability in situations where Congress likely intended them to face liability. Part V argues that the Eleventh Circuit could have avoided participating in the trend to dilute the ADEA's reasonability requirement simply by considering the ADEA's plain language; Part V presents the plain language argument that the Eleventh Circuit should have used and demonstrates how that analysis solves the question at bar without needlessly diluting the ADEA's reasonability requirement. A plain language analysis yields a conclusion consistent with Supreme Court statements on the issue, the congressionally-stated purpose of the ADEA, and the Eleventh Circuit's conclusion that Title VII and the ADEA are not analogous,12 and would preserve the Adams court's correct analysis of those issues. Part VI offers conclusions.

II. BACKGROUND

A. The Age Discrimination in Employment Act

The ADEA13 protects workers over forty years of age14 and prohibits three principal groups from engaging in age discrimination: employers, employment agencies, and labor organizations.15 According to section 623(a), employers may not fire, refuse to hire, or discriminate against any employee by paying that employee less or by providing inferior terms, conditions, or privileges of employment because of that employee's age; additionally, employers may not segregate or classify any employee in any way because of that employee's age that would adversely affect that employee, nor can they reduce the wages of younger employees in order to mask a discriminatory discrepancy between younger and older employees' wages.16