On March 29, 2004 the United States Supreme Court granted certiorari in this case. The issue before the Court was whether employees can sue employers under the federal Age Discrimination in Employment Act ("ADEA") for actions or policies that have a disparate impact, or unintentionally fall more harshly, on employees over the age of 40. The AAUP joined other civil rights groups in signing onto an amicus brief penned by the AARP that argues that the legislative history of the ADEA clearly establishes that Congress intended that disparate impact cases should be actionable. AAUP's On Discrimination policy prohibits "colleges and universities from practicing illegal or unconstitutional discrimination, or discrimination on a basis not demonstrably related to the job function involved, including but not limited to, age . . . ." AAUP is deeply concerned that the unavailability of the disparate impact method of proof under the ADEA would undermine the ability of professors to ensure freedom from age discrimination in the academic workplace. Read the amicus brief (pdf).
Status: On March 30, 2005 the U.S. Supreme Court ruled in a 5-3 decision that disparate impact cases are actionable under the ADEA. The decision is available at http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/000/03-1160.html#opinion1.