Question: Does the Smith decision give older workers the same protection against unintentional acts of discrimination ("disparate impact") that are given to women, blacks, and members of other groups that sue under Title VII of the Civil rights Act of 1964?
Answer: No. In Smith, the Court clarified that the defense to a disparate impact case is less burdensome than under Title VII. Under Title VII, an employer must establish "business necessity" for the policy or practice that results in the disparate impact. Under the ADEA, employers need only establish that the policy or practice is "reasonable."
Question: If an employee alleges an employer's policy or action violated the employee's rights under the ADEA, can the employer prevail under the ADEA if the employer can show that it acted based on a "reasonable factor other than age"?
Answer: Yes. For example, an employer may disqualify applicants for a job if they don't have the requisite educational degree. However, to be lawful, the "reasonable factor other than age," must be applied equally; it cannot, in any way, include age; and it must be job-related.
Implementing programs and policies to attract and retain workers aged 40+ will become increasingly important and will present American businesses with new opportunities and challenges. Now that older workers have the right to challenge more subtle forms of age discrimination, regardless of intent, the Supreme Court decision is a reminder to evaluate your policies and practices to ensure that:
Employment practices are age-neutral.
They do not provide special benefits to one age group of employees over another.
They comply with the ADEA and other state and local age discrimination statutes.
How do your company's employment practices rate in age equity?