Fourth Circuit: No Disparate Impact Claims Under ADEA for Feds
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
A former Bureau of Prisons employee claimed that BOP’s fitness test disparately impacts those older than 40. On November 17, 2021, the United States Court of Appeals for the Fourth Circuit held that sovereign immunity protected the government from such a suit as the Age Discrimination in Employment Act’s (ADEA) federal sector provision did not provide for a disparate impact cause of action.
In July 2014, the employee accepted a job as a psychiatrist with the Bureau of Prisons. At the time, she was sixty-seven years old. As a condition of her hiring, the employee was required to pass the BOP’s Physical Abilities Test. That test included dragging a seventy-five-pound dummy at least 694 feet for three minutes, climbing a ladder to retrieve an object within seven seconds, completing an obstacle course in fifty-eight seconds, running a quarter mile and handcuffing someone within two minutes and thirty-five seconds, and climbing three flights of stairs in forty-five seconds while wearing a twenty-pound weight belt.
The employee failed the test the first time she took it. Rather than retake the test within 24 hours, as allowed, she declined, “fearing that in her exhausted physical condition, she would be unable [to] complete it in a satisfactory time during the second attempt.” BOP told her she could either resign, or be terminated for failure to pass the test within the required time.
The employee filed suit under the ADEA in federal district court alleging that the BOP’s fitness test disparately impacted employees over 40. “Disparate impact” refers to policies or practices that appear to be neutral and are applied to everyone, but nonetheless result in a disproportionately negative impact on one protected group.
The employee’s suit was dismissed by the district court for lack of standing after the court found that she “had not suffered an injury in fact traceable to the BOP’s actions because the facts in her complaint did not constitute an adverse employment action under Title VII or the ADEA.” The employee appealed the decision to the United States Court of Appeals for the Fourth Circuit.
Although the Fourth Circuit disagreed with the lower court, and found that the employee had standing to bring suit, the appeals court dismissed the employee’s ADEA claim for another reason: sovereign immunity. Sovereign immunity refers to the fact that the United States government cannot be sued without its consent. That consent is typically provided in the form of legislation authorizing specific kinds of lawsuits against the U.S. government.
Sovereign immunity is “jurisdictional in nature,” as the federal appeals court noted, because it “prevents a claim from being brought against the sovereign.” While the ADEA unequivocally waives the government’s immunity from suit for claims under Section 633a(a) of the ADEA, the appeals court found that the employee did not assert a claim within the terms of that waiver.
Section 633a(a), the federal sector provision of the ADEA, states that “[a]ll personnel actions affecting [federal] employees or applicants for [federal] employment who are at least 40 years of age…shall be made free from any discrimination based on age.”
Section 623(a)(2), the corresponding private-sector provision of the ADEA, goes further. It states that it “shall be unlawful for an employer…to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” The appeals court noted that this language matches the language in Title VII found by the Supreme Court to allow disparate impact claims based on race, citing Griggs v. Duke Power Co., 401 U.S. 424 (1971). The appeals court also observed that in Smith v. City of Jackson, 544 U.S. 228 (2005), the Supreme Court, relying in part on the logic of Griggs, previously held that the private sector provision of the ADEA allows disparate impact claims.
But with regard to the federal sector provision of the ADEA, the appeals court held that the statutory text could not support a waiver of sovereign immunity on disparate impact claims. The appeals court observed that “[o]nly where the statutory prohibition refers to the ‘consequences of actions and not just to the mindset of actors’ is disparate-impact liability authorized.’” Here, the appeals court reasoned, the ADEA’s federal sector provision only addressed the actor’s intent when it required “personnel actions affecting employees” be “made free from any discrimination based on age.” Thus, the court held, the statutory text merely asks if “age discrimination plays any part in the way a decision is made,” and is focused on the “motivation for the employer’s action” rather than the “effects of the action on the employee.” As such, the statutory text precluded disparate impact liability under Smith.
Put more simply, “the text of [the federal sector ADEA provision] requires that employment-related decisions be untainted by differential treatment of employees identical in all respects but age,” thus authorizing “disparate-treatment claims.” But “it does not encompass disparate-impact claims, where an employer adopts a policy that treats all employees the same, no matter how old they happen to be.”
Read the full case: DiCocco v. Garland.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.