Can Federal Employees File Disparate-Impact Age Discrimination Claims?

Last month, in DiCocco v. Garland, the Fourth Circuit Court of Appeals held that the Age Discrimination in Employment Act (ADEA) does not provide a disparate-impact cause of action for federal employees. The EEOC and other courts disagree; we have not heard the last word on this issue.

There are two kinds of discrimination cases: disparate treatment, and disparate impact. A person who claims they were the subject of a personnel action because of their protected status (race, gender, etc.) is alleging disparate treatment. A disparate-impact claim is different: an employee (or group of employees) claims that the employer has a policy that appears to be neutral, but in fact has an unequal impact on employees in a certain protected class. The first major Supreme Court decision explaining this theory was Griggs v. Duke Power Co. in 1971. Duke Power, located in North Carolina, had a requirement that all new hires have a high school diploma. While the requirement did not appear to be racial in nature, Black residents of North Carolina were dramatically less likely to graduate high school because of the historically segregated school system. Employees who were not hired for janitorial positions based on the diploma requirement sued under Title VII, and the Supreme Court held that the need for a diploma was “fair in form, but discriminatory in operation.” In such a situation, Duke was required – but unable – to explain why a high school diploma was needed to perform the duties of a janitor.

DiCocco is a 67-year-old psychiatrist who applied for a position at a federal prison and was required, like all federal Bureau of Prisons (BOP) employees, to take a physical fitness test that included dragging a 75-pound dummy at least 694 feet for three minutes, completing an obstacle course in 58 seconds, and climbing three flights of stairs in 45 seconds while wearing a 20-pound weight belt. She failed the test on her first try and had the option to retake it within 24 hours but declined. She was then told she could resign, or she would be terminated for failure to pass the test. She resigned, and after exhausting her administrative remedies, she filed a complaint in federal district court. The district court dismissed the claim, and DiCocco appealed.

In DiCocco, the BOP never had to argue that the challenged physical fitness test was closely related to Dicocco’s job duties. Instead, because the Fourth Circuit held that the ADEA does not provide a disparate-impact cause of action for federal-sector employees, plaintiff DiCocco’s ADEA case failed.

The Fourth Circuit affirmed dismissal of the ADEA claim because, according to the court, the ADEA does not waive the federal government’s sovereign immunity for disparate-impact claims. A rule reaching back to our history under the English King provides for “sovereign immunity,” i.e., the government cannot be sued unless it agrees to be sued. Courts regularly hold that Congress’ decision to waive sovereign immunity in a statute must be clearly expressed in the statute.

Here, the Fourth Circuit explained that the ADEA “unequivocally” waives the federal government’s immunity for disparate treatment claims, i.e., claims that an older employee was treated differently because of their age. The Supreme Court held as much in Gomez-Perez v. Potter, citing 29 U.S.C. § 633a(c). But, based on the language of the statute, the Fourth Circuit held that Congress did not waive sovereign immunity under the ADEA for disparate-impact claims.

The ADEA’s federal-sector provision states: “All personnel actions affecting [federal] employees or applicants for [federal] employment who are at least 40 years of age … shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). The court found that based on the ADEA’s text, the law’s structure, and the legal landscape in which the law was passed, the ADEA does not provide a sufficient basis to believe Congress intended to allow for disparate-impact claims by federal employees.

In dissent, Judge Floyd disagreed with the majority’s holding on the ADEA claim. Instead, he explained that the ADEA’s language is unquestionably broad, and it prohibits “any discrimination based on age,” thus encompassing disparate-impact claims. 29 U.S.C. § 633a(a). Because disparate-impact discrimination is still discrimination, Judge Floyd wrote, it is prohibited by the ADEA’s prohibition on any age discrimination in the federal sector. The dissent cites federal circuit courts that have held that federal employees may bring well-pled ADEA disparate-impact claims: the 10th Circuit (Lujan v. Walters); and the 9th Circuit (Palmer v. United States). In Lujan, the court wrote that if the plaintiff had shown disparate impact, his ADEA claim may have proceeded. In Palmer, the court explained that to proceed on a claim of disparate impact discrimination under the ADEA, a plaintiff must show 1) the employer’s use of seemingly neutral employment practices, and 2) a significant adverse or disproportionate impact produced by that employment practice on employees aged 40 and over. In DiCocco, the majority cited no other court of appeals decision agreeing that the ADEA prohibits all federal-sector disparate-impact claims. The Fourth Circuit’s decision has therefore created a “split in the circuits,” and the Supreme Court may have to resolve the difference.

As the result, federal employees over the age of 40 who live or work in the states covered by the Fourth Circuit (Maryland, Virginia, West Virginia, and North and South Carolina) and wish to challenge physical or other requirements that have no bearing on how well they do their jobs may not be able to bring a claim under the ADEA. The EEOC has held that federal employees may bring disparate-impact claims under the ADEA, where statistical evidence shows that a seemingly neutral policy disproportionately impacts members of the protected class. See Brown v. Dep’t of Transp., explaining that to establish disparate impact under the ADEA and other anti-discrimination statutes, the petitioner must 1) identify the specific policy or practice challenged; 2) show statistical disparities; and 3) show a link between the policy or practice and the disparity. Moreover, an EEOC regulation, 29 C.F.R. § 1625.7(e)(1), specifically provides that in the face of a claim that a requirement imposes a disparate impact based on age, “an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.”

It remains to be seen whether the EEOC’s regulations or the Fourth Circuit’s interpretation of the ADEA will control the availability of disparate-impact claims for federal employees.