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Employers' stereotypes about the effect of age on employment are not consistent across the entire group of individuals age forty and older. It is intuitive to believe that employers may view employees in their forties as being in their employment prime, while believing that employees in their sixties are not.' Likewise, perceptions of age may vary dramatically depending on the age of the decision-maker. Common sense tells us that a supervisor in his or her forties may create policies that are neutral or positive toward individuals in that age range, while either intentionally or unintentionally engaging in employment practices that disadvantage employees in their fifties, sixties, or seventies. Research from the field of psychology supports these ideas. Some may even argue that society's perceptions of age are changing so much that many workers would not view those in their forties as being in the "older" part of the workforce. These observations are reflected in the popular media, which often touts that "40 is the new30."' We do not often see these types of statements favorably comparing individuals in their fifties, sixties, and seventies with those younger than forty.'

Despite this reality, some courts have held that disparate impact claims under the Age Discrimination in Employment Act (ADEA) are only cognizable if all of the employees over the age of forty are negatively affected by an employment practice. More specifically, the majority of courts that have considered the question have held that plaintiffs may not prevail on an ADEA disparate impact claim if their evidence is that the employer's practice resulted in a disparate impact only on older workers within the protected class. Under these decisions, a plaintiff would not have a viable disparate impact claim if she alleged that a practice disparately affected employees fifty and older, as long as the practice's effect on all individuals over forty was neutral or positive. All three federal circuit courts that have addressed this issue have held that subgroup claims are not viable under a disparate impact theory, as have a majority of the district courts that have issued published decisions on the issue.

Some of the courts that have refused to consider subgroup evidence in support of disparate impact claims have made rather alarmist claims about the effects such evidence would have on disparate impact law under the ADEA. The courts posit a hypothetical in which an eighty year old employee sues over an employment practice that disparately affects her, but that does not have a disparate impact on a group of employees in their seventies. Some courts may also fear that the recognition of such claims could place employers in constant litigation about the effects of every employment practice and create an impossible situation where the employer is required to achieve statistical parity across an infinite number of possible age subgroups.

This Article argues that the decisions refusing subgroup evidence are erroneous, that subgroup disparate impact claims should be recognized under the ADEA, and that these claims are consistent with the ADEA's statutory text, legislative history, and purposes. The alarmist consequences envisioned by the courts are not adequate reasons to declare that all subgroup claims are incognizable. Perhaps more importantly, these hypotheticals do not accurately describe the bulk of subgroup claims. As discussed in more detail below, the skepticism of the courts about the persuasiveness of statistical evidence, the cost and difficulty of compiling such evidence, and the requirement of a significant disparate effect are all practical limits on subgroup claims."

These courts also ignore the simple fact that participation in the workplace decreases with age." For many employees, especially those in their sixties or older, it will be impossible to produce subgroup evidence in support of a disparate impact claim because there will simply be too few employees within the protected class to create a statistically significant sample. Furthermore, the Supreme Court's recent decision in Smith v. City of Jackson, while confirming that disparate impact cases are cognizable under the ADEA, also severely restricts the practical viability of such claims.' Those claims that remain viable after Smith deserve consideration on the merits rather than quick dismissals based on the false premise of incognizability.

To provide necessary context for the larger discussion, Part II begins with an overview of the development of the disparate impact theory under the ADEA, with an in-depth presentation of the Smith decision. Part III discusses the cases that have rejected disparate impact subgroup claims under the ADEA, the handful of cases that have allowed subgroup cases to proceed, and the reasons underlying the courts' decisions. Part IV demonstrates how the statutory text of the ADEA, its legislative history, and its purpose all support the argument that subgroup disparate impact claims are viable under the ADEA. It also discusses Title VII disparate impact cases and ADEA disparate treatment cases whose underlying rationales strongly suggest that such claims are cognizable. Finally, Part V addresses the alarmist hypotheticals posed by the courts and demonstrates how the realities of disparate impact litigation, the current demographics of the workforce, and the recent Smith case make it improbable that subgroup evidence will result in the posited effects.


This article was published in 90 Marq. L. Rev. 227 (2006).