RIGHT WITHOUT A REMEDY?: SUPREME COURT ALLOWS DISPARATE IMPACT CLAIMS UNDER THE ADEA

In Smith v. City of Jackson, decided in Mar 2005, the Supreme Court held 5-3 that disparate impact claims may proceed under the Age Discrimination in Employment Act of 1967 (ADEA), which protects employees and job applicants aged 40 and over from age-based discrimination. Justice Stevens -- at 84, the oldest Justice -- wrote the main opinion, which has four sections. Justices Souter, Ginsburg, and Breyer joined it in full. They disagreed with the Fifth Circuit on whether disparate impact claims may proceed under the ADEA, but affirmed that court's decision for the city. Smith is not a stellar effort. Steven's opinion is almost impenetrable at times. Smith is an odd decision. Based on, at times, unpersuasive and unclear reasoning, the four most pro-employee Justices on the Court opened the door to ADEA disparate impact claims, only to slam it nearly shut by uncritically endorsing questionable and seemingly discredited principles and ignoring competing positions.