Michael Leedom


In the wake of the landmark Civil Rights Act of 1964, an act which protected minorities and women from employment discrimination but did not prohibit discrimination based on age, Congress enacted the Age Discrimination in Employment Act of 1967 (hereinafter "ADEA"). This act prohibits an employer from taking actions 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." At first glance, this statutory prohibition would seem to be very similar to Title VII of the Civil Rights Act of 1964, and indeed the language in the ADEA matches the language in Title VII as to employment discrimination. However, a key difference exists that makes proving an age discrimination case significantly more difficult than proving a Title VII case. The "reasonable factors other than age" (hereinafter "RFOA") provision of the ADEA, as well as the qualitative differences between age discrimination and other forms of discrimination, raises a significant question as to whether the ADEA should be judicially interpreted in the same way as Title VII On March 30, 2005, the U.S. Supreme Court issued a 5-3 decision (Justice Rehnquist did not participate) in the case of Smith v. City of Jackson, a case in which the court was called upon to determine whether the ADEA should be interpreted in a way similar to Title VII. The Court answered in the affirmative regarding the question of disparate impact policies in employment, holding that disparate impact theory can provide a cause of action in ADEA cases, just as it does in Title VII cases. While the court rejected the plaintiffs' age discrimination claim in Smith, " its decision could prove to be favorable to ADEA plaintiffs in the long term. After a discussion of disparate impact theory, this casenote will examine the arguments for and against allowing ADEA claims under disparate impact theory and will analyze whether the court's decision was proper and whether it will have a significant impact on age discrimination cases in the future.