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The courts have ruled that employers don’t have to defend disparate impact based on a “business necessity,” the normal defense to a disparate impact case, which

by traek 8y ago

The courts have ruled that employers don’t have to defend disparate impact based on a “business necessity,” the normal defense to a disparate impact case, which is a high bar to clear. See the Smith v. Jackson ruling, which clarified that in an age discrimination disparate case, the defendant must only show “reasonable factors other than age,” and NOT business necessity. RFOA is a much lower bar. Given a genuine lack of intent to discriminate based on age, any competent lawyer would be able to argue that salary is a RFOA. You, meanwhile, have cited nothing.

notacoward 8y ago
You're still misrepresenting the state of the law. Yes, you absolutely can use factors other than age, but not deliberately as a proxy for age. Again, Hazen. Also Taggart v. Time (which uses "euphemism" instead of "proxy" but reaches the same conclusion). Intent does matter, though disparate impact alone carried the day in Smith v. City of Jackson. If you're going to play a lawyer online, learn the law. Using phrases like "plainly untrue" for areas of the law that are complex and still rapidly evolving isn't very constructive. As I said earlier, it's possible to use salary etc. in good faith, but it's risky and anyone who does it had better be extra-prepared to document their processes in case of a challenge.
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- traek 8y ago
  > As I said earlier, it's possible to use salary etc. in good faith, but it's risky No you didn't, you said "The short answer is that it's generally [not] legal to consider salary demands [...] in the context of firing or laying people off." > disparate impact alone carried the day in Smith v. City of Jackson. Disparate impact absolutely did not "carry the day" in Smith v. Jackson, SCOTUS ruled against the plaintiffs. It ruled that disparate impact can be applied to ADEA, but with a much narrower interpretation than with Title VII. Specifically, they carved out very broad exemptions for "reasonable factors", which would in most cases include salary. In fact, even in that very case "reasonable factors" included salary! SCOTUS ruled unanimously in favor of the employer--specifically ruling that seniority/pay grade IS a reasonable factor. Try reading the analysis of the case (or even the actual opinion, or maybe even just learning to read) before being so patronizing.
  - notacoward 8y ago
    You're misrepresenting again. Yes, the court found for the plaintiff on a technicality, but they upheld the principle that disparate impact could be sufficient to support a claim. https://www.oyez.org/cases/2004/03-1160 https://www.oyez.org/cases/2004/03-1160 > maybe even just learning to read) before being so patronizing That's very hypocritical of you. I've given you multiple chances to engage in an honest way. You've declined every time. Past experience tells me that it's not worth my time to keep trying. Go peddle your pro-age-discrimination views elsewhere.
    - traek 8y ago
      > the court found for the plaintiff on a technicality, but they upheld the principle that disparate impact could be sufficient to support a claim. No, they didn't. The majority opinion did conclude that disparate impact is cognizable under ADEA, but it specifically addressed whether it would apply to the claim in that case and found that it wouldn't. There was a technicality (no relevant practice identified) but the court went further than that. > Turning to the case before us, we initially note that petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Wards Cove, it 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. Rather, the employee is “ ‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.’ ” 490 U.S., at 656 (emphasis added) (quoting Watson, 487 U.S., at 994). Petitioners have failed to do so. Their failure to identify the specific practice being challenged is the sort of omission that could “result in employers being potentially liable for ‘the myriad of innocent causes that may lead to statistical imbalances … .’ ” 490 U.S., at 657. In this case not only did petitioners thus err by failing to identify the relevant practice, but it is also clear from the record that the City’s plan was based on reasonable factors other than age. > [...] > Thus, the disparate impact is attributable to the City’s decision to give raises based on seniority and position. Reliance on seniority and rank is unquestionably reasonable given the City’s goal of raising employees’ salaries to match those in surrounding communities. In sum, we hold that the City’s decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a “reasonable factor other than age” that responded to the City’s legitimate goal of retaining police officers. Cf. MacPherson v. University of Montevallo, 922 F.2d 766, 772 (CA11 1991). > While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement. > Accordingly, while we do not agree with the Court of Appeals’ holding that that the disparate-impact theory of recovery is never available under the ADEA, we affirm its judgment. The opinion is very approachable, I genuinely encourage you to try reading it.[0] I don't know where you're getting your facts from but they're objectively inaccurate. > That's very hypocritical of you. You're right, I'm sorry for that. [0] https://www.law.cornell.edu/supct/html/03-1160.ZO.html https://www.law.cornell.edu/supct/html/03-1160.ZO.html

by traek 8y ago

notacoward 8y ago

You're still misrepresenting the state of the law. Yes, you absolutely can use factors other than age, but not deliberately as a proxy for age. Again, Hazen. Also Taggart v. Time (which uses "euphemism" instead of "proxy" but reaches the same conclusion). Intent does matter, though disparate impact alone carried the day in Smith v. City of Jackson. If you're going to play a lawyer online, learn the law. Using phrases like "plainly untrue" for areas of the law that are complex and still rapidly evolving isn't very constructive. As I said earlier, it's possible to use salary etc. in good faith, but it's risky and anyone who does it had better be extra-prepared to document their processes in case of a challenge.

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traek 8y ago
> As I said earlier, it's possible to use salary etc. in good faith, but it's risky No you didn't, you said "The short answer is that it's generally [not] legal to consider salary demands [...] in the context of firing or laying people off." > disparate impact alone carried the day in Smith v. City of Jackson. Disparate impact absolutely did not "carry the day" in Smith v. Jackson, SCOTUS ruled against the plaintiffs. It ruled that disparate impact can be applied to ADEA, but with a much narrower interpretation than with Title VII. Specifically, they carved out very broad exemptions for "reasonable factors", which would in most cases include salary. In fact, even in that very case "reasonable factors" included salary! SCOTUS ruled unanimously in favor of the employer--specifically ruling that seniority/pay grade IS a reasonable factor. Try reading the analysis of the case (or even the actual opinion, or maybe even just learning to read) before being so patronizing.
- notacoward 8y ago
  You're misrepresenting again. Yes, the court found for the plaintiff on a technicality, but they upheld the principle that disparate impact could be sufficient to support a claim. https://www.oyez.org/cases/2004/03-1160 https://www.oyez.org/cases/2004/03-1160 > maybe even just learning to read) before being so patronizing That's very hypocritical of you. I've given you multiple chances to engage in an honest way. You've declined every time. Past experience tells me that it's not worth my time to keep trying. Go peddle your pro-age-discrimination views elsewhere.
  - traek 8y ago
    > the court found for the plaintiff on a technicality, but they upheld the principle that disparate impact could be sufficient to support a claim. No, they didn't. The majority opinion did conclude that disparate impact is cognizable under ADEA, but it specifically addressed whether it would apply to the claim in that case and found that it wouldn't. There was a technicality (no relevant practice identified) but the court went further than that. > Turning to the case before us, we initially note that petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Wards Cove, it 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. Rather, the employee is “ ‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.’ ” 490 U.S., at 656 (emphasis added) (quoting Watson, 487 U.S., at 994). Petitioners have failed to do so. Their failure to identify the specific practice being challenged is the sort of omission that could “result in employers being potentially liable for ‘the myriad of innocent causes that may lead to statistical imbalances … .’ ” 490 U.S., at 657. In this case not only did petitioners thus err by failing to identify the relevant practice, but it is also clear from the record that the City’s plan was based on reasonable factors other than age. > [...] > Thus, the disparate impact is attributable to the City’s decision to give raises based on seniority and position. Reliance on seniority and rank is unquestionably reasonable given the City’s goal of raising employees’ salaries to match those in surrounding communities. In sum, we hold that the City’s decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a “reasonable factor other than age” that responded to the City’s legitimate goal of retaining police officers. Cf. MacPherson v. University of Montevallo, 922 F.2d 766, 772 (CA11 1991). > While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement. > Accordingly, while we do not agree with the Court of Appeals’ holding that that the disparate-impact theory of recovery is never available under the ADEA, we affirm its judgment. The opinion is very approachable, I genuinely encourage you to try reading it.[0] I don't know where you're getting your facts from but they're objectively inaccurate. > That's very hypocritical of you. You're right, I'm sorry for that. [0] https://www.law.cornell.edu/supct/html/03-1160.ZO.html https://www.law.cornell.edu/supct/html/03-1160.ZO.html