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AAUP Joins Age Discrimination Case
In March the U.S. Supreme Court heard arguments in Adams v. Florida Power Corporation, a case in which former employees of a utility company challenged a corporate reorganization in which more than 70 percent of the employees laid off were at least forty years old. The case is relevant to higher education because it addresses the ability of plaintiffs to rely on the "disparate impact" method of proving discrimination under the federal Age Discrimination in Employment Act (ADEA). An action has disparate impact when it disproportionately affects a class of people, even if that effect is unintentional. For example, a requirement that employees be of a certain minimum height would have a disparate impact on women. In age discrimination cases, cost is frequently the issue.
"Personnel cost considerations are often tied to years of service and thus to age," says James Brudney, a professor at the Ohio State University College of Law and a member of the AAUP’s litigation committee. "If you lay off the most expensive employees or implement cost-related reductions in overall support, this is likely to have a disparate impact on older employees, even if older employees are not deliberately targeted."
Adams came to the Supreme Court after lower courts ruled that disparate impact claims may not be brought under the ADEA, and if the Supreme Court agrees, it will be impossible to do so. Concerned that the unavailability of the disparate impact method of proof under the federal law would undermine the ability of professors to ensure freedom from age discrimination in the academic workplace, the AAUP joined a friend-of-the-court brief drafted by the American Association of Retired Persons, which argues that denying the disparate impact method of proving age discrimination will thwart the intent of Congress in passing the ADEA, protect conduct that Congress deemed harmful to both individuals and the national economy, and undermine the core civil rights principle that workers should not be judged on characteristics unrelated to their participation in the work force.
"If disparate impact isn’t recognized, it will erode the bargaining power of professors and may leave them vulnerable to targeted buyouts or incentive plans," says Brudney. Age discrimination is a particularly pressing issue in higher education because of the relatively advanced age at which many professors become full-time faculty members. According to one study, the average age of Ph.D. recipients in 1995 was thirty-four. The ADEA protects workers older than forty.
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