Smith v. City of Jackson: Brief Summary. Jeffrey W. Sarles Mayer, Brown, Rowe & Maw LLP May 24, 2005

Transcription

1

2 Smith v. City of Jackson: Brief Summary Jeffrey W. Sarles Mayer, Brown, Rowe & Maw LLP May 24, 2005

3 Smith v. City of Jackson, No (U.S. March 30, 2005) It is unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual s age (ADEA 4(a)(2)) This provision authorizes disparate impact claims under the ADEA

4 Smith v. City of Jackson, No (U.S. March 30, 2005) However, the ADEA permits any otherwise prohibited action where the differentiation is based on reasonable factors other than age ( RFOA ) The plaintiff bears the burden of isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities

5 Smith v. City of Jackson: Resurrecting the Past Professor Howard Eglit Chicago-Kent College of Law May 24, 2005

6 Ward s Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), Is Resurrected

7 Burdens of Proof and Production The defendant s burden under the ADEA in a disparate impact suit is much easier than is that of a Title VII disparate impact defendant

8 Nature of the Defendant s Burden of Production The defendant s burden of production in a disparate impact ADEA suit is much easier than is that of a Title VII disparate impact defendant

9 Identifying the Specific Cause of Harmful Impact The plaintiff s task in an ADEA suit to establish with specificity the cause of the alleged harm is tougher than is that of a Title VII plaintiff

10 The Relevance of an Alternative Practice with a Less Harmful Impact ADEA plaintiffs and Title VII plaintiffs are on an even keel insofar as the issue of an alternative practice or policy is concerned

11 The Significance of Smith for Age-Proxy Situations It would seem that age-proxy analysis is resurrected

12 Practical Considerations after Smith Jeffrey S. Piell Mayer, Brown, Rowe & Maw LLP May 24, 2005

13 Reactions to the Smith Decision Plaintiffs Bar/Employee Groups Consider decision a win Decision was not unexpected May be Pyrrhic victory

14 Reactions to the Smith Decision Defense Bar/Employers Consider decision a win Laud decision that reasonable employment decisions are legal, even if they have adverse impact Read decision as imposing steep hurdles to plaintiffs success on claim Employees must demonstrate a specific test, requirement or practice that caused the adverse impact Even if employee can demonstrate a specific practice and causation, employer not liable if action based on reasonable factor other than age

15 Impact on Litigation In some jurisdictions Little impact Some circuits already allowed disparate impact actions (2nd, 9th) Many states allow disparate impact claims under state law In other jurisdictions Moderate impact Several circuits did not allow ADEA disparate impact claims (1 st, 5 th, 7 th, 10 th ) Motivated plaintiffs New theory, new opportunity Supreme Court opened door to disparate impact claims

16 Class/Collective Actions ADEA borrows opt-in framework from FLSA Harder for plaintiffs to pursue Expenses of collective action not insignificant Statistics Plaintiff recruitment But, plaintiffs counsel has incentive to pursue collective actions Investment in statistics already made Limited ADEA damages Significant expense motivates plaintiffs/counsel to maximize potential recovery

17 Effect on Employer Practices Avoid age-related decisions Review all practices, policies and programs concerning hiring, promotions, compensation, benefits, reductionsin-force to determine if they disproportionately or adversely affect workers over 40 Consider statistical analyses on larger scale personnel actions

18 Effect on Employer Practices Take steps to ensure employment decisions that disproportionately affect employees over 40 are based on reasonable factor other than age Reorganization/cost savings Budget concerns Market benchmarks Seniority

19 Effect on Employer Practices Communicate reasonable factors to employees Think ahead Watch for developments