Law Commons^™

Distinguishing Disparate Treatment From Disparate Impact; Confusion On The Court, Michael C. Harper

Faculty Scholarship

In two decisions in the 2014-2015 Term, Young v. United Parcel Service, Inc., and Equal Employment Opportunity Commission v. Abercrombie & Fitch, Inc., the Court seemed to give contradictory answers to an important unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group based on their protected status to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or does such assignment have only a disparate impact on the protected status group?

In Young, the first of these decisions, all members of the …

Reforming The Age Discrimination In Employment Act: Proposals And Prospects, Michael C. Harper

Faculty Scholarship

This article argues that the Age Discrimination in Employment Act (ADEA) should be amended to provide it with the same procedural and substantive strengths Congress has provided Title VII. The article highlights four gaps between the ADEA and Title VII: damage remedies; class actions; defenses to disparate impact actions; and causation standards for disparate treatment actions. The article also advocates other modifications of the ADEA to encourage the employment of older Americans. The article recommends compelling employers to retain productive incumbent older workers, regardless of the compensation previously promised experienced workers. It also recommends considering allowing employers to hire older …