Part I of this Note addresses the current debate on this topic, illustrated through case law in the Eleventh Circuit, the Seventh Circuit, and a recent federal district court ruling in the Ninth Circuit. Part II analyzes the unambiguous, textual differences between the various subsections of the ADEA as well as the textual differences between Title VII and the ADEA. This Note explores these textual arguments through an analysis of the statutes and interpretative case law and concludes that, as drafted, the disparate impact theory of age discrimination should not be available to non- employee job applicants. Part III illustrates why utilizing a disparate impact theory of recovery in age discrimination cases is futile for non-employee job applicants, demonstrates why the current position held by the Equal Employment Opportunity Commission (EEOC), the administrative agency responsible for the ADEA’s enforcement, should not be determinative on this matter, and proposes a new pathway to support older job applicants in their quests for employment. This Note advocates for Congress, through legislative action, and the EEOC, through its rulemaking responsibilities, to develop incentives and education initiatives for employers to eliminate the unconscious biases and stereotypes often encumbering older workers.
L. Whitney Woodward,
Disparate Impact Under the ADEA: Applicants Need not Apply,
Ga. St. U. L. Rev.
Available at: https://readingroom.law.gsu.edu/gsulr/vol36/iss2/3