Disparate Impact Based on Age

In the recent case Allard v. Department of Justice, Civil Case No. 10-2081 (D.D.C. 01/10/12), the U.S. District Court for the District of Columbia addressed the issue of whether federal employees over the age of 40 may sue their agencies under the Age Discrimination in Employment Act (ADEA) for policies that disparately impact them as older workers. The court held no, finding that the ADEA provision applicable to federal employees does not authorize disparate-impact claims.

In 2004, the agency announced a new policy which set a five-year maximum term limit to field positions held by grade GS-14 supervisory special agents (SSAs) at FBI. At the end of the term, the policy prohibited affected SSAs from retaining their current positions, but provided these employees with multiple career options, including applying for a promotion to a higher grade position at FBI headquarters or in the field, accepting a temporary GS-14 or GS-15 level rotation to FBI headquarters, or returning to investigative duties as a non-supervisory agent at the GS-13 level. The plaintiffs argued that data accumulated by the FBI show that the policy would have a disproportionate impact on agents over 40 years old.

The ADEA section applicable to federal employers states that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age." The court acknowledged that although this section authorizes discrimination claims, whether it also authorizes disparate-impact claims is a matter of dispute. A disparate-impact claim involves an employment decision which may seem to be free from discrimination and based on neutral factors, but adversely impacts a protected group more severely than a non-protected group.

The plaintiffs argued that the federal sector's language "broadly prohibits any discrimination" and is "substantially similar to the non-federal section's language," which supports disparate-impact claims. However, the court found that if the federal sector intended to cover disparate-impact claims, it would indicate so. The court noted that Congress "deliberately proscribed a distinct statutory scheme applicable only to the federal sector" and that the federal sector's language included no authorization for disparate-impact claims.

Whether the ADEA section applicable to non-federal employees supports disparate-impact claims was an issue which the Supreme Court had to resolve in Smith v. City of Jackson, 544 U.S. 228 (2005), when it held that ADEA does authorize such claims. Neither the Supreme Court nor the U.S. Court of Appeals for the D.C. Circuit has ruled on whether the Smith case applies to federal employees.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/.