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

Section 623(f) of the ADEA sets forth categories of permissible employment practices which would otherwise be impermissible if not explicitly sanctioned.17 First, it permits employers to engage in what would otherwise be discriminatory behavior so long as "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business."18 Second, and most important for purposes of this Note, it allows employers to differentiate between employees "based on reasonable factors other than age."19 Third, it also allows employers to violate the ADEA's provisions if compliance with the Act would be illegal in the country where the workplace is located, if a foreign country.20 Employers may also observe a bona fide seniority system21 or employee benefit plan,22 even if such systems or plans violate the ADEA.23

B. Disparate Treatment and Disparate Impact Defined

Disparate impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity."24 The United States Supreme Court has held that "[p]roof of discriminatory motive . . . is not required under a disparate-impact theory."25 For example, a disparate impact claim might challenge a policy to require a job applicant's birthdate; that policy may not have as its purpose the weeding out of older applicants, but it may deter older employees from applying for the job or, at a minimum, cause an unsuccessful applicant to believe that she was not hired because of her age.26 In that circumstance, the plaintiff employee would not need to demonstrate that the employer intended to discriminate against older applicants; she would only need to prove that the employer's policy "more harshly" impacted older applicants.

Disparate treatment, on the other hand, is intentional discrimination. It occurs when an employer purposefully discriminates in her employment decisions on the basis of the employee's race, gender, religion, or some other characteristic.27 In a disparate treatment claim, therefore, a plaintiff must demonstrate the defendant employer's discriminatory intent. In contrast to a disparate impact claim, which argues that an otherwise facially neutral employment policy impacts one class of workers more harshly than another, a disparate treatment claim would, for example, claim that an employee had been terminated because of sex or race.28 In a disparate impact claim, those characteristics are incidental to the discrimination; in a disparate treatment claim, those characteristics are the reason for the discrimination.

III. THE ADAMS DECISION: OUTLINING AND TAKING A STAND ON THE CIRCUIT SPLIT

A. How the Circuit Split Arose

The Eleventh Circuit's decision in Adams v. Florida, Power Corp. maps out the path that disparate impact theory took in integrating itself into ADEA jurisprudence.29 That path began with two United States Supreme Court decisions. In 1971, the Court decided Griggs v. Duke Power Co.30 which held that disparate impact in employment discrimination was a cognizable injury under Title VII.31 Then, in 1978, the Court decided Lorillard v. Pons,32 which pointed out that the language of Title VII's prohibitions on discrimination mirrors that of the ADEA; specifically, the Court noted that "the prohibitions of the ADEA were derived in haec verba from Title VII."33 Taken together, those decisions seem to say that disparate impact liability is available under the ADEA; if disparate impact liability is available under Title VTI, and the prohibitory language of the ADEA mirrors that of Title VII, then the ADEA must also permit disparate impact liability.