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Third Circuit Allows Group of Over-50 Workers to Pursue Their Federal Age Discrimination Case

If you’re familiar with federal age discrimination law, you’ll probably know that the “magic number,” so to speak, in terms of the group of age-protected employees is 40 years of age. So what happens when a group of workers, all of whom are over 50, pursue an Age Discrimination in Employment Act claim accusing their employer of discrimination specifically against 50+ employees? According to an important decision issued by the Third Circuit Court of Appeals, which covers New Jersey, Pennsylvania, and Delaware, the ADEA allows them to go forward with their disparate impact claim, even though they were only a sub-group of all age-protected employees.

Due to the economic downturn of 2008, an auto glass manufacturer in Pennsylvania began engaging in “reductions in force” (also known as layoffs) starting that year. On March 31, 2009, the employer laid off more than 100 employees.

Seven of the employees laid off in March 2009, all of whom worked in the company’s manufacturing technology division, and all of whom were over the age of 50, joined together and sued the employer. The way the employer carried out the March reduction in force constituted impermissible age discrimination and violated the ADEA, they argued. Specifically, they claimed that the reductions in force had a disproportionately harmful impact on older workers.

What made this case stand out from other age discrimination cases is that the workers did not argue that the reductions in force had a disparate impact on workers over 40. Their case centered on the contention that the impermissible disproportionate impact fell upon a sub-group of age-protected employees, namely, people who, like themselves, were in their 50s or older.

For some workers, advancing a disparate impact claim can be a helpful avenue toward success. The other option, disparate treatment, often requires proof of more overt or direct discriminatory misconduct by the employer. A disparate impact claim only requires a plaintiff to prove that the employer’s conduct, regardless of the employer’s intentions, had a disproportionately harmful negative impact on people within a protected class.

The employer fought against the workers’ lawsuit, arguing that the ADEA did not allow sub-groups of age-protected employees to advance a disparate impact claim. In the past, the Second Circuit (which covers New York), along with the Sixth and Eighth Circuits, ruled against sub-group disparate impact ADEA claims.

In this case, though, the Third Circuit sided with the workers. According to the court, the plain language of the ADEA clearly indicated that the law was intended to stop discrimination, including disparate impact discrimination, “based on age, not forty-and-older identity.” Coming to the opposite conclusion, the court determined, would mean that the courts would have to “ignore genuine statistical disparities that could otherwise be actionable,” and employers could improperly escape liability.

The court used a 1996 U.S. Supreme Court case, O’Connor v. Consolidated Coin Caterers Corp., to support its position. In that case, a 56-year-old worker launched an age discrimination action after his employer replaced him with a 40-year-old. The fact that both the plaintiff and the replacement employee were 40+ did not automatically bar the older worker from pursuing an age discrimination case. The statute barred discrimination because of age, rather than just discrimination against workers age 40+. By the same logic, the court concluded, the ADEA has to allow sub-group disparate impact claims. If an employer’s action disparately affects age-50+ workers negatively, that may be actionable as discrimination based upon age, even if that same employer action had a neutral or positive impact on workers age 40-49.

In the future, the court wrote, employers undertaking reductions in force may have “to be more vigilant about the effects of their employment practices.” This ruling offers significant potential aid to some older workers who have been disproportionately targeted due to age when their employers undertook reductions in force.

Whether you are seeking to hold your employer accountable for discrimination under federal law or the New Jersey Law Against Discrimination, you need experienced counsel familiar with the law and the process of litigating these types of cases. The skilled New Jersey age discrimination attorneys at Phillips & Associates have been defending workers in age discrimination cases for many years and have the resources to help you with your case. Contact us online or at (619) 436-9087 today to set up a free and confidential consultation with one of our skilled and experienced attorneys.

More blog posts:

New Jersey Jury Awards Laid-Off Engineer $51 Million in Damages in Age Discrimination Case, New Jersey Employment Lawyer Blog, April 27, 2017

NJ Supreme Court: Employers Cannot Force Employees to Accept Shortened Period for Pursuing Discrimination Claims, New Jersey Employment Lawyer Blog, March 8, 2017

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