position that disparate impact theory is unavailable to plaintiffs, (2) has challenged the ability of several plaintiffs to establish a prima facie case of intentional age discrimination and (3) has defended the program as reflecting a nondiscriminatory decision to increase the number of college graduates within the contract specialist category. Although it is not entirely clear whether plaintiffs continue to advance both disparate impact and disparate treatment theories, each has certainly been injected into the case, so they will be considered seriatim.
First recognized under Title VII (42 U.S.C. §§ 2000e to 2000e-17) in Griggs v. Duke Power Co,, 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), disparate impact theory treats facially-neutral employment policies that adversely impact a protected class as discriminatory even without any showing of the employer's intent--unless, that is, the employer shows that the policies respond to some business necessity (accord, International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977)). Although there are a number of respects in which Title VII jurisprudence and ADEA jurisprudence have traveled the same road, the Supreme Court "has never decided whether a disparate impact theory of liability is available under the ADEA" ( Hazen Paper Co. v. Biggins, 123 L. Ed. 2d 338, 113 S. Ct. 1701, 1706 (1993), citing then Justice Rehnquist's dissent from denial of certiorari in Markham v. Geller, 451 U.S. 945, 68 L. Ed. 2d 332, 101 S. Ct. 2028 (1981); see also Michael Sloan, Comment, Disparate Impact in the Age Discrimination in Employment Act: Will the Supreme Court Permit It?, 1995 Wis. L. Rev. 507 (1995)).
Since the landmark decision in Griggs, however, several Courts of Appeals have imported the disparate impact concept into ADEA (e.g., MacPherson v. University of Montevallo, 922 F.2d 766, 770-71 (11th Cir. 1991); Abbott v. Federal Forge, Inc., 912 F.2d 867, 872 (6th Cir. 1990); EEOC v. Borden's Inc., 724 F.2d 1390, 1394-95 (9th Cir. 1984); Leftwich v. Harris-Stowe State College, 702 F.2d 686, 690 (8th Cir. 1983); Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir. 1980)). Among the reasons stated for those decisions, the most obvious was the striking similarity between the language of Title VII upon which Griggs had relied (42 U.S.C. § 2000e-2(a)) and Section 623(a) (see, e.g., Borden's, 724 F.2d at 1394; Geller, 635 F.2d at 1032; and see generally Charles Sullivan & Michael Zimmer, Proving a Violation under the Age Discrimination in Employment Act of 1967 ["Sullivan & Zimmer"], 17 Seton Hall L. Rev. 803, 831-39 (1987)).
That approach drew criticism from some commentators on the ground that it ignored a distinction between the two statutes: Section 623(f) sets out a defense that legalizes any employment "based on reasonable factors other than age"--a defense that has no precise Title VII parallel (see, e.g., Pamela Krop, Note, Age Discrimination and the Disparate Impact Doctrine, 34 Stan. L. Rev. 837, 844-48 (1982); Sullivan & Zimmer, 17 Seton Hall L. Rev. at 832-33)). That distinction was relied upon in Francis Parker, 41 F.3d at 1077 to adopt the view, expressed several years earlier in Judge Easterbrook's dissenting opinion in Metz v. Transit Mix, Inc., 828 F.2d 1202, 1220 (7th Cir. 1987), that Section 623(f) should be read as having taken disparate impact out of Section 623.
Francis Parker, 41 F.3d at 1077-78 further reasoned that 42 U.S.C. § 2000e-2(a)(2) does not mirror Section 623 exactly, because in 1972 the former was expanded to encompass "applicants for employment" while ADEA has no such provision. Our Court of Appeals, id. at 1076-77 also drew upon language in Hazen Paper to conclude that "decisions based on criteria which merely tend to affect workers over the age of forty more adversely than workers under forty are not prohibited" by ADEA ( id. at 1077) (accord, Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125-26 (7th Cir. 1994)).
Here the twist is that plaintiffs are federal employees and therefore seek relief under Section 633a, not Section 623. Section 633a contains no textual counterpart to Section 623(f), and by its terms it is the exclusive prohibition against age discrimination within the federal government (Section 633a(f)). If the plain language of Section 633a(f) had left any doubt on the latter point, Lehman v. Nakshian, 453 U.S. 156, 168, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981) would have dispelled it by its statement that the enactment of Subsection (f) in 1976 "clearly emphasized" that Section 633a embodies a "self-contained" prohibition against age discrimination in the federal workplace, "unaffected by other sections, including those governing procedures applicable in actions against private employers."
We are thus left largely without compass from our Court of Appeals on the issue of disparate impact as to federal employees, for the key statutory language--Section 623(f)'s "reasonable factors other than age"--that was relied upon in Judge Easterbrook's Metz dissent and then in Francis Parker is wholly missing from Section 633a. Moreover, the phrase "applicants for employment"--the absence of which from Section 623(a)(2) was deemed noteworthy by Francis Parker, 41 F.3d at 1077-78--is present in Section 633a(a). And last, as a disparate treatment case brought under Section 623 Hazen Paper cannot fairly be viewed as having considered the very different situation here: disparate impact under Section 633a.
But we are not wholly adrift. Judge Easterbrook's Metz dissent began its disparate impact discussion by observing (828 F.2d at 1216):
The ADEA was enacted in 1967, before the first of the disparate impact cases (Griggs, in 1971), so we cannot be confident that the Act adopted this method.