Maine has the oldest average population of any state (see "Gray Expectations"
in the April 18 issue of Mainebiz). Our graying population and
shrinking workforce suggests that legal developments affecting the rights of
workers over 40 deserve particular attention by Maine businesses. The U.S.
Supreme Court’s recent decision offering plaintiffs another means of proving age
discrimination, Smith v. City of Jackson, is a case in point.
The Court’s decision means that an employer can be found liable for age bias
even in the absence of proof of discriminatory intent. An otherwise
facially neutral personnel decision, policy or program that adversely impacts
workers over 40, relative to their younger co-workers, can now result in legal
liability under federal law. Before Smith, federal courts were
split on whether a worker could prevail against an employer without establishing
discriminatory intent. Now, theoretically, liability can rest upon a
statistical correlation demonstrating that older workers are disproportionately
affected by a personnel decision, policy or program.
Smith offers a mix of both favorable and unfavorable consequences for
defendant-employers. For example, in its decision the Court imposed two
high evidentiary hurdles upon workers who intend to rely upon a disparate impact
theory to reach a jury. Nevertheless, the practical implications of
Smith for employers are that every personnel decision, policy and program
with the potential for adversely affecting older workers (and perhaps, older job
applicants) – including such things as early retirement plans, hiring criteria,
computer proficiency requirements -- should be evaluated to ensure that it is
non-discriminatory and allows for a “reasonable” explanation based on some
factor other than age.
Large corporate employers in jurisdictions such as Boston, Atlanta or Denver
(where such claims were not permitted prior to the ruling) are likely to feel
the greatest impact. Because disparate impact lawsuits are not driven by
individualized proof, turning instead on statistical evidence, they often carry
sizeable litigation costs in connection with expert witnesses and complicated
discovery, lending themselves to class actions aimed at large corporate
employers. The typical Maine employer, with far fewer than 50 workers, is
an unlikely target for this type of full-on legal assault, but smaller employers
should not be any less vigilant than, say, Hannaford Bros. or Bath Iron Works,
in evaluating how pay plans, voluntary retirement incentives, performance
grading systems or other policies are inclined to affect their workers.
Interestingly, the threat of litigation posed by disparate impact claims may
wind up having the unintended effect of motivating hiring managers to make
decisions on the basis of secret “quota” formulas, with the hopes that in doing
so, their “numbers” will pass muster statistically. If this practice grows
as a result of Smith, one institutional impediment will simply replace
another in connection with the treatment of older workers.
Historically, ADEA has been less generous than the broader statutory
protections – embodied in Title VII – aimed at other classes of workers
(minorities, women, the disabled, etc.). Even after Smith, the law
still supports that conclusion, although things appear to be changing. The
most meaningful impact of Smith may not be the fact that plaintiffs now
have an alternative means of getting their age bias claims to a jury, but rather
the fact that Smith represents the second significant ruling in less than
five years in which the Court has expanded plaintiff rights in connection with
claims filed under ADEA. Just as the bulk of our regional workforce moves
into their peak earning years and increasingly defers retirement, the legal
table is being set so as to accommodate those workers most reliant on the ADEA’s
protections.
