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

Twenty-two years after Griggs, in Hezen Paper Co. v. Biggins,34 the Supreme Court attacked the notion that disparate impact was a cognizable injury under the ADEA, but not in a way that would provide clear guidance to other courts deciding that issue. Hearing the case of an ADEA-covered employee who was terminated immediately before his pension benefits vested,35 the Court noted that "[d]isparate treatment . . . captures the essence of what Congress sought to prohibit in the ADEA,"36 and that "[w]hen the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age . . . ."37 Also, in his concurring opinion, Justice Kennedy noted that "there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA."38 On their face, these statements seem to conclusively demonstrate that the Court believed disparate impact to have no place in ADEA jurisprudence, but the majority explicitly noted that Hezen Paper was a disparate treatment case, not a disparate impact case, and that the Court had "never decided whether a disparate impact theory of liability is available under the ADEA" and that it would not do so in deciding Hazen Paper.39 In addition, Justice Kennedy's concurrence explained that "nothing in the Court's opinion should be read as incorporating in the ADEA context the so-called 'disparate impact' theory of Title VII."40 As such, even though the Court seems to believe that disparate impact has no place in ADEA jurisprudence, there is considerable doubt as to whether Hazen Paper is a disparate impact case at all.

Two perspectives therefore result. One perspective relies on the similarity in language between the ADEA and Title VII and the fact that the Hazen Paper Court explicitly refused to invalidate that argument. The other perspective relies on the Hazen Paper dicta to argue that disparate impact liability has no place in ADEA jurisprudence. Those two conflicting perspectives caused a split in the circuits. The Eleventh Circuit in Adams noted that "[t]he Second, Eighth, and Ninth Circuits have read [the language in Hazen specifying that the Supreme Court does not decide whether disparate impact may form a basis for liability under the ADEA] literally and continue to allow disparate impact claims."41 However, the "First, Third, Sixth, Seventh, and Tenth Circuits have questioned the viability of disparate impact claims under the ADEA postHazen."42 These cases rely both on the Hazen Paper majority opinion and concurring statements.43

B. The Reasoning in Adams44

After presenting the history of disparate impact in the ADEA context and outlining the circuit split on that issue, the court in Adams went on to reject the claim that disparate impact can form the foundation for a claim under the ADEA. In doing so, the Eleventh Circuit relied on the plain language of the ADEA, its legislative history, and an interpretation of the Supreme Court's Hazen Paper decision.