Employees can challenge employment practices based on the disparate impact they have on a protected class. When that class consists of older workers, employers can save themselves by showing that a reasonable factor other than age motivated the policy.
Recent case: When a municipal police department decided to abandon length of service as a qualification for promotion to police captain, the only officers affected were those who were over age 40. That’s because the old promotion criteria specified at least 30 years of service.
A group of older police officers sued, alleging the new policy disparately impacted older officers. Therefore, they said, the new policy was illegal age discrimination.
The disparate impact didn’t matter to the court because the city’s motivating factor was the need to cut costs. The court tossed the officers’ case. (Aldridge, et al., v. Memphis, No. 08-6046, 6th Cir., 2010)