Circuit split: 3d Cir. recognizes ADEA subgroup disparate impact claims

The ADEA protects employees over the age of 40 from age discrimination. In Karlo v. Pittsburgh Glass Works, LLC, the Third Circuit analyzed whether a subgroup of employees older than 40 can bring a disparate impact claim:

Disparate-impact claims in ADEA cases ordinarily evaluate the effect of a facially neutral policy on all employees who are at least forty years old—that is, all employees covered by the ADEA. In this case, plaintiffs claim to have identified a policy that disproportionately impacted a subgroup of that population: employees older than fifty.

Not official use.

If you counted the employees older than 40 but younger than 50, it "washed out the statistical evidence of a disparity."

The Court provided in depth analysis of the issue, but one of the primary factors was the specific protection provided by the ADEA. "[T]he ADEA proscribes age discrimination, not forty-and-over discrimination." The Court relied heavily on the Supreme Court's determination that a 56 year old employee could file a discrimination claim if he was fired and replaced by a significantly younger worker... even if that comparitor was over 40. See, O'Connor v. Consolidated Coin Caterers Corp.

Ultimately, the Third Circuit concluded that plaintiffs may bring disparate impact claims where a policy disproportionately impacts a subgroup of employees older than 40 (e.g. employees odler than 50), even if the statistical evidence would not support a disparate impact theory when applied to the entire class of employees over 40. This creates a circuit split, as multiple other circuit courts have reached the opposite conclusion. Circuit splits often draw SCOTUS attention - we'll see if this is the case that gets the issue to SCOTUS.