Note: The Curious Case of Disparate Impact Under the ADEA: Reversing the Theory’s Development into Obsolescence

By R. Henry Pfutzenreuter IV. Full text here.

The present state of the economy places the nation’s older worker in a perilous situation. Employers, motivated by either the appearance of economic incentives or age-related stereotypes, are apt to seek savings in cost via large-scale reductions-in-force. The factors relied upon in executing these internal restructurings often serve as functional proxies for age. The Age Discrimination in Employment Act (ADEA) provides relief for the victims of such discriminatory practices under the theory of disparate impact. Unfortunately, however, the standard currently employed by courts in evaluating these claims makes the prospects for recovery highly unlikely.

This Note argues that a balancing approach should replace the existing level of deference afforded to employers under the reasonable factor other than age (RFOA) defense. Beginning with an overview of the history of disparate impact under the ADEA, this Note observes that the present minimal threshold for invoking the RFOA defense results in a practical impossibility for recovery. It argues that the current standard is ill-equipped to address both the economic situation faced by older workers, as well as the psychological nature of age discrimination itself. It proposes that a familiar standard in tort liability, Judge Hand’s B < PL formula, should instead provide the normative model for balancing the interests necessary to determine the “reasonableness” of an employer’s reliance upon a factor other than age. It concludes that such an approach would be more consistent with the fundamental premise of antidiscrimination law as a form of tort liability, coincide with a modern understanding of age discrimination’s operation at an implicit level, and address the urgent economic concerns facing older workers.