Tuesday, January 10, 2017

age discrimination - disparate impact - class action - subgroup 50+

Karlo et al. v. Pittsburgh Glass Works – 3d Cir. – January 10, 2017

The Age Discrimination in Employment Act (“ADEA”) protects only those individuals who are at least forty years of age. The question in this case is whether a disparate-impact claim is cognizable where a “subgroup” of employees at the upper end of that range—in this case, employees aged fifty and older— were alleged to have been disfavored relative to younger employees. We answer in the affirmative.

Our decision is dictated by the plain text of the statute as interpreted by the Supreme Court. In particular, the ADEA prohibits disparate impacts based on age, not forty-and-older identity. A rule that disallowed subgroups would ignore genuine statistical disparities that could otherwise be actionable through application of the plain text of the statute.   Although several of our sister circuits have ruled to the contrary, their reasoning relies primarily on policy arguments that we do not find persuasive.

We will therefore reverse the judgment of the District Court based on its interpretation of the ADEA. We will also vacate the District Court’s order excluding the testimony of plaintiffs’ statistics expert and remand for further Daubert proceedings. We will affirm in all other respects.