Is it still workplace discrimination if the practical effect of a policy that seems neutral on its surface ends up being disproportionately negative for a subgroup of a protected class?
According to the Third Circuit Court of Appeals, which handles cases in New Jersey, Pennsylvania and several other states, it most certainly does.
The Age Discrimination in Employment Act is a federal law that protects workers aged 40 and over from age-based discrimination. When the Pittsburgh Glass Works company faced an economic downturn several years ago, it had to implement several "reduction in force" measures. About 100 employees lost their jobs.
Statistically, the company's layoff patterns didn't discriminate against those employees aged 40 and over—which meant that it appeared to be compliant with the ADEA. However, when the group of terminated employees aged 50 and over were compared to those under age 50, the terminations appeared to discriminate against the older workers.
Yet, if those employees between the ages of 40 to 49 were counted, there was no statistical violation. The company's defense argued that the ADEA was designed to protect the whole class, not just subgroups within the class.
While three other circuit courts in other areas of the country have agreed — and the Glass Works company would have won its argument in those courts — the Third Circuit Court rejected the glass company's defense.
In other words, the court ruled that it doesn't matter if an employee protected by the ADEA lost out to another employee protected by the ADEA if the reason that one was chosen over the other was his or her age. That's still age discrimination.
It remains to be seen whether or not the company tries to appeal the verdict to the Supreme Court. For now, employers (and employees) in New Jersey and other Third Circuit states should take note of the court's ruling.
There are also implications that could potentially come into play with other protected classes. For example, an action that doesn't seem to discriminate against racial minorities could still be subtly discriminatory once the figures are examined. If Hispanic employees are favored over African-American employees, and both are favored over Arabic employees, that would still be discrimination.
Anyone who believes they're in a protected class but experiencing a disparate impact from a company policy should consider contacting an attorney for advice.
Source: New Jersey Law Journal, "Third Circuit Clarifies Employer Liability in Age Bias Case," P.J. D'Annunzio, Jan. 11, 2017