Disparate treatment looks to whether an employer intended to discriminate against older workers. Disparate impact looks to the consequences of policies or practices that on the surface are age-neutral. It is much easier to prove consequences than intent. The result of the Smith decision could be significant particularly at this moment in time. The Baby Boomer generation is aging, and the youngest Baby Boomer will qualify this year (at age 40) for protection under the ADEA.
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