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Splitting the federal circuits, a federal appeals court in Philadelphia has ruled that age discrimination may be actionable by sub-groups of older workers.
The Third Circuit Court of Appeals said the Age Discrimination in Employment Act protects workers aged 40 and older against age discrimination, and groups of fifty-year-olds or older groups may sue relative to younger groups in the protected class.
"A rule that disallowed subgroups would ignore genuine statistical disparities that could otherwise be actionable through application of the plain text of the statute," the appellate court said.
In reversing a trial court decision in the case, the appeals court set up the issue for resolution by the U.S. Supreme Court. The third Circuit acknowledged that its ruling was at odds with the Second, Sixth and Eighth circuits, but said it was compelled to craft its own rule.
50 Is the New 40
The defendant, Pittsburgh Glass Works, allegedly discriminated against people 50 and older in the course of layoffs in 2009. It did not, however, discriminate against people younger than 50.
"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," the court said.
But in this case, the plaintiffs identified a policy that disproportionately impacted employees older than fifty. Because the policy favored younger members of the protected class, the court reasoned, adding those individuals to the comparison group negates the statistical evidence of a disparity.
"The central question in this case is whether so-called 'subgroup' disparate-impact claims are cognizable under the ADEA," the unanimous panel said. "We hold that they are."