Fifth Circuit Rejects Age-Based Disparate Impact Claims

The U.S. Court of Appeals for the Fifth Circuit ruled on November 13, 2003, in Smith v. City of Jackson, Miss., that the disparate impact theory of discrimination is not available under the federal Age Discrimination in Employment Act (ADEA). This ruling is also applicable to age claims under the Texas Commission on Human Rights Act (TCHRA), which specifically provides that interpretations of the ADEA apply on this point. Because of a dissenting opinion by Judge Carl Stewart, it is possible that the case could be reviewed by the court en banc.

The disparate impact theory, which is still applicable to claims of sex, race or other discrimination under Title VII or the TCHRA, allows for liability when facially neutral policies or practices fall more harshly on one group than another and cannot be justified by business necessity. To prove a disparate impact, a plaintiff need not show intent--thus an employer could be liable for employment actions without ever intending to