Court Rules That "Disparate Impact" Claim of Age Discrimination Claim Must Be Pled With Specificity
Despite labor statistics indicating that younger workers are bearing the heaviest brunt of layoffs during the economic downturn, many older workers continue to perceive that company-wide layoffs are disproportionately targeting them in violation of the Age Discrimination in Employment Act (ADEA). Older workers claiming that they were selected for layoff because of age discrimination in violation of the ADEA must prove their case through one of two ways: (i) that they were disparately treated because of their age (called disparate treatment) and their age was the "but-for" cause of the layoff; or (ii) that the employer instituted a facially-neutral policy or practice that disproportionately impacted older workers (called disparate impact).
The ADEA requires plaintiffs to exhaust administrative remedies prior to initiating a civil action (i.e., by filing a Charge of Discrimination with the EEOC or state or local agency). When claiming disparate impact, however, not only must a plaintiff assert as much in his Charge, he must describe the alleged neutral policy or practice with sufficient specificity in order for that claim to later be viable in his civil action. That is what U.S. District Judge Dominic Squatrito ruled on June 23, 2009 in Zawacki v. Realogy Corp., an age discrimination claim pending in District of Connecticut federal court: "[T]he employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. . . [I]t is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact." Noting that the Charge form lacks a box for the claimant to check whether she is pursuing her age claim under a disparate impact theory, Judge Squatrito examined the affidavit filed by Zawacki in support of her Charge and found it insufficient: "In the Court's view, the Plaintiff's affidavit fails in this regard. A disparate impact claim requires the Plaintiff to allege that the Defendant implemented some neutral policy that had a disparate effect on older employees. Her affidavit does not do this." Although precise pleading is not required, there must be sufficient facts pled to put the agency on notice of the nature of the alleged discrimination.
Though not required to, the Court went on to examine the plaintiff's complaint filed in court, and found that it, too, lacked sufficient specificity to support a claim of disparate impact: "Plaintiff alleges that the Defendant's procedures in conducting the RIFs were nothing more than a cover for behind-the-scenes, intentional discrimination against its older employees. There is no allegation of a facially neutral practice or policy that fell more harshly on the protected group. . . The allegations in the second amended complaint simply do not support her claims of disparate impact. . . Thus, even if the Plaintiff's disparate impact claims were properly before the administrative agencies, the motion to dismiss those claims must still be granted."
The result of plaintiff's pleading deficiency, however, does not end the case. Although she may not pursue her claim of age discrimination under a theory of disparate impact, Zawacki is still permitted to pursue the case under a disparate treatment theory. As noted by Judge Squatrito, however, Zawacki must satisfy the burden of proof set forth in the Supreme Court's recent Gross v. FBL Financial Servs., Inc. case and "prove that age was the 'but-for' cause of the employer's adverse decision."
The ADEA requires plaintiffs to exhaust administrative remedies prior to initiating a civil action (i.e., by filing a Charge of Discrimination with the EEOC or state or local agency). When claiming disparate impact, however, not only must a plaintiff assert as much in his Charge, he must describe the alleged neutral policy or practice with sufficient specificity in order for that claim to later be viable in his civil action. That is what U.S. District Judge Dominic Squatrito ruled on June 23, 2009 in Zawacki v. Realogy Corp., an age discrimination claim pending in District of Connecticut federal court: "[T]he employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. . . [I]t is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact." Noting that the Charge form lacks a box for the claimant to check whether she is pursuing her age claim under a disparate impact theory, Judge Squatrito examined the affidavit filed by Zawacki in support of her Charge and found it insufficient: "In the Court's view, the Plaintiff's affidavit fails in this regard. A disparate impact claim requires the Plaintiff to allege that the Defendant implemented some neutral policy that had a disparate effect on older employees. Her affidavit does not do this." Although precise pleading is not required, there must be sufficient facts pled to put the agency on notice of the nature of the alleged discrimination.
Though not required to, the Court went on to examine the plaintiff's complaint filed in court, and found that it, too, lacked sufficient specificity to support a claim of disparate impact: "Plaintiff alleges that the Defendant's procedures in conducting the RIFs were nothing more than a cover for behind-the-scenes, intentional discrimination against its older employees. There is no allegation of a facially neutral practice or policy that fell more harshly on the protected group. . . The allegations in the second amended complaint simply do not support her claims of disparate impact. . . Thus, even if the Plaintiff's disparate impact claims were properly before the administrative agencies, the motion to dismiss those claims must still be granted."
The result of plaintiff's pleading deficiency, however, does not end the case. Although she may not pursue her claim of age discrimination under a theory of disparate impact, Zawacki is still permitted to pursue the case under a disparate treatment theory. As noted by Judge Squatrito, however, Zawacki must satisfy the burden of proof set forth in the Supreme Court's recent Gross v. FBL Financial Servs., Inc. case and "prove that age was the 'but-for' cause of the employer's adverse decision."
