Does Disparate Impact Analysis Apply to Federal Employee Discrimination Cases?

Judge Urbina in Aliotta v. Bair, 576 F. Supp. 2d 113 (D.D.C. Sep. 18, 2008) recognized that it is an open question whether whether ADEA disparate impact cases are legally cognizable against federal employers. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993); Koger v. Reno, 321 U.S. App. D.C. 182, 98 F.3d 631, 639 n.2 (D.C. Cir. 1996) (declining to decide whether such a claim was cognizable because the plaintiff failed to establish a prima facie case). The court in Smith v. City of Jackson, 544 U.S. 228 (2005), applied the Title VII interpretation to 29 U.S.C. § 623, a section that does not apply to federal employers, and there is "good reason to doubt that [federal employee] plaintiffs have a cognizable ADEA disparate impact claim." Breen v. Mineta, 2005 U.S. Dist. LEXIS 35416, 2005 WL 3276163, at *7 (D.D.C. Sept. 30, 2005). Members of the D.C. District Court remain divided on the issue. In Breen v. Peters, the court concluded that 29 U.S.C. § 633a, the section prohibiting age discrimination in federal employment, did not preserve sovereign immunity against disparate impact claims because the text of the section prohibits discrimination, not intentional discrimination. 474 F. Supp. 2d 1, 6 (D.D.C. 2005). "The text of § 633a does not explicitly or implicitly require a plaintiff to prove that the federal employer was motivated by animus or intended to discriminate in violation of the law. In short, the plain language of § 633a does not support the distinction between disparate treatment and disparate impact." Id. In contrast, in Silver v. Leavitt, the court relied on "the significant question of sovereign immunity, and the Supreme Court's acknowledgment that the nature of the ADEA differs markedly from that of Title VII" to conclude that a disparate impact claim was not legally cognizable against a federal employer. 2006 U.S. Dist. LEXIS 12949, 2006 WL 626928, at * 13 (D.D.C. Mar. 13, 2006).