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Vol. 43, No. 1 Summer

Employee Relations Law Journal

By: Howard S. Lavin, Elizabeth E. DiMichele

Is a claim under the Age Discrimination in Employment Act (“ADEA”) cognizable when a plaintiff establishes that an employment policy has a significantly disproportionate adverse impact on a “sub-group” of workers within the protected class, but not all employees aged 40 or older?

The recent Third Circuit decision in Karlo v. Pittsburgh Glass Works, LLC, created a split among the circuit courts on this issue.  Until this year, all Circuit Courts to have considered the issue – the Second, Sixth and Eighth Circuits – have rejected disparate impact age discrimination claims based on the theory that an employment practice had an unlawful negative impact on a certain group of older employees, requiring instead that the plaintiffs demonstrate a negative impact on all employees aged 40 and over.  This January, however, the Third Circuit departed from its sister circuits, holding that a rule prohibiting claims based on sub-group discrimination denies statutory protection to the very individuals the ADEA is intended to cover and is contrary to the plain text of the statute.

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