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Appellate Court Holds That ADEA Plaintiffs Can Use Employees Over 40 as Comparators

In Karlo, et al. v. Pittsburgh Glass Works, LLC (no. 15-3435; filed January 10, 2017), the Third Circuit Court of Appeals ruled that plaintiffs in an ADEA disparate impact claim can make out a prima facie case by showing that certain age subgroups within the protected class were treated differently from other subgroups within that same class.  Put another way, an employer cannot simply lump all those employees over the age of 40 into one pot when measuring discriminatory conduct.

As most readers of this blog probably know, the Age Discrimination in Employment Act proscribes, in its broadest sense, discrimination against employees aged 40 and older.  In Karla, a group of employees aged 50 and over sued, claiming that the company’s reductions in force disparately impacted them.  The nuance is that that the employer claimed that retaining workers over 40, but younger than the plaintiffs, would wash out any disparate impact.  The Third Circuit disagreed and ruled that the ADEA protects individual workers against age discrimination, not merely a general class of workers over the age of forty.  The Court allowed the claims to proceed based on the theory that plaintiffs could show disparate impact among subgroups of those workers over 40.  In this case, plaintiffs claimed that employer RIFs impacted workers over the age of 50 differently than those workers over the age of 40, notwithstanding the fact that all the workers fell under the ADEA’s protections.

The Third Circuit noted that its opinion contrasted with those from the Second, Sixth and Eighth circuits, so this is probably not the last word on the matter.

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