William F. Allen v. Entergy Corp.

ranking system impact had an adverse HEANEY, Before BOWMAN and age, analy- on the basis of but not further LONGSTAFF,1 Judges, Circuit and performed. sis was Judge. District parallel process, imple- In a Entergy BOWMAN, Judge. Circuit plan reorganize mented a its Inde- employees Entergy Corpora- Former pendence and White Bluff coal-fired tion, Entergy Inc. sued and its subsidiaries plants. appellants The generating for age dispa- discrimination on theories of discharged pursuant subsequent impact rate and treatment. The in plants. reduction work force at these jury eighteen days, case was tried to a managers plants placed The of the two days and after six deliberation the employees positions into the created returned verdicts for Entergy on all the the reorganization considering after vari- disparate impact claims and on all but five factors, including ranking ous num- disparate-treatment of the Those claims.2 sys- bers created the new evaluation prevail appeal, who did not and appellants’ disparate-impact tem. The we affirm. claims were based on the use of the anticipated Responding deregulation ranking system employees to select competition in in- utility the electric fill reorganized positions. ap- The dustry, Entergy developed an evaluation pellants argued ranking system that system employees compari- that ranked adversely employees affected older Entergy’s prior son to one another. evalu- that rankings their low individual caused system employees ation did not rate positions. them not to be selected for relation to employees, other and it had evaluations, produced many claims were sub- high too re- sulting employees’ interrogatories. most evaluation mitted to the on Longstaff, Entergy judgments 1. appealing The Honorable Ronald E. Chief is not the five Judge, United States District Court for the against entered it. Iowa, sitting by designa-. Southern District of tion. 28 L.Ed.2d 158 had used a selec- Entergy that jury found (“The necessity. is business If impact had an adverse touchstone procedure tion employment practice ... cannot be forty or older and employees age through job performance, use discharged was to be related to appellant each shown however, jury, system. practice prohibited.”). Lessening ranking justifi- burden, a business Entergy required had the em found Wards Cove ranking system produc cation for ployer only to bear the burden of proved had not justification evidence of a business ing effective selection availability equally of an employment practice. challenged impact upon having less adverse system U.S. employees.

older practice (stating challenged that the significantly employer’s must serve the le argue that the District appellants The it gitimate employment goals but is not jury on instructing in the Court3 erred indispensable). required to be essential or in motions impact, denying its The 1991 Civil Act overturned as a matter of law on judgment for again placed and the burden Wards Cove claims, making in and disparate-impact employer on the “to demonstrate that the evidentiary rulings. certain ... challenged practice job related argue that the Dis appellants necessity.”4 42 consistent with business erroneously jury trict instructed Court 2000e-2(k)(1)(A)(i). appel § U .S.C. Packing in with Wards Cove accordance Cove, that, argue contrary lants to Wards 642, 109 2115, Atonio, v. 490 U.S. Co. Entergy had to bear the bur should have (1989). Pointing out that 104 L.Ed.2d 733 necessity proving a business for den case, Cove, a Title VII was over Wards ranking system rather than of the 1991 Civil provision turned a justification, a merely showing business VII, Title see 42 amending Act disprove. appellants which the then had 2000e-2(k)(1)(A)(i) (1994), ap U.S.C. appel Entergy contends pre-Wards pellants argue claim properly preserve lants did approach to Title VII agree. “[T]o of instructional error. We by analogy should be followed cases a preserve argument concerning an Age under the Dis disparate-impact cases review, party appellate instruction (ADEA), Employment crimination objected distinctly the matter must state (1994). Prior §§ 621-634 29 U.S.C. objection for the on the grounds to and the Cove, employer had the burden Cleaver, 1059, 142 F.3d v. record.” Cross challenged that the evaluation proving (8th Cir.1998) Dupre v. Fru- (quoting 1068 practice was a system or other business (8th 329, Inc., 112 F.3d 334 Eng’g, Con necessity by showing it was relat business Cir.1997)); 51. The see also Fed.R.Civ.P. See, job performance. e.g., Albe ed to “bring into objection specific must be 405, Moody, 422 U.S. Paper marle Co. precise alleged nature of the focus the 425, 2362, 45 95 S.Ct. L.Ed.2d may have the district court error” so that employer that the has the “burden (stating ”); opportunity to “correct errors ‘job that its tests are related’ Co., need for a new trial.” Westcott avoid the Duke Power Griggs v. ers], employer's legiti Moody, would also serve James M. United 3. The Honorable Albemarle, Judge the Eastern District District interest[s].” States mate [business] 2362; of Arkansas. see also Wards U.S. at S.Ct. 2115. This U.S. at burden, whether employer meets its If the placed plain consistently been on has necessity prove business or the standard is to indeed, and, the 1991 VII cases tiffs in Title justification, the burden show business place this bur Rights Act continues party complaining to show then shifts to "the § 2000e- plaintiffs. See 42 U.S.C. den devices, or selection without that other tests (1) (A)(ii). (k) 2 [impact work similarly undesirable on older Crinklaw, argue they objected Cir. to the burden of 1998) (internal omitted). quotation “Even proof both as to reasonable alternatives tendering alternative instruction with and as to business necessity. They may specific objecting out to some error objection, have intended such an but if so charge explaining why trial court’s or they utterly distinctly failed to state it so proffered instruction accurately more as to bring objection the nature of their preserve states the law does not the error preserve into focus for the court. To appeal.” Id. alleged error for appeal, appellants required, during instruction After the District asked the Court conference, specific objection to make a objections for their to the in distinctly objected stated the structions, matter following discussion oc grounds objection. to and the curred. appellants’ objection did not use the terms [ATTORNEY FOR In PLAINTIFFS]: necessity” justifica- “business object struction No. we would tion.” Even assuming the ob- placing proof of the burden of on the jection sufficiently general encompass to what we believe are still affirmative defenses of the defendants. both reasonable alternatives and business Age Under Discrimination Act the necessity, a “general objection [is] insuffi- defendants have the burden of preserve specific objections cient to the age reasonable factors other than as the instruction” that appellants argue. now affirmative they defense and we Dupre, 112 F.3d at 333. Nowhere in their would— also have—we also think that they have objection appellants did the specify the proving why they burden of did not grounds objection they now urge as use the alternative. We would like to a basis for reversal. hearing After proffer an alternative instruction under response, District Court’s appellants Albemarle Paper Company Moody. easily could have made clear that also THE COURT: I think we are down objecting proof to the burden of as to to Proffered Instruction J. necessity business on the ground that the right, All I’m to refuse the going Rights Act overturned Wards Plaintiffs’ Proffered Instruction J and business-justification Cove’s analysis, but objection overrule the to the In- Court’s they failed to do so. struction No. my 10. From reading of appellants Because the failed to law, Eighth Circuit case which has timely make a adequate objection re not made a definitive ruling on who has issue, garding the necessity business this proof burden of on the issue of the only plain Court reviews error. See alternative, my analysis reasonable Westcott, 133 F.3d at 662. appellants The the law is that it would be unfair to must show that instructing accordance place that on the defendants un- with Wards Cove was an “error affecting til statutory ease law or law has made it rights,” substantial the error was clear that there is a burden on the de- “plain,” and that the seriously error affect fendants establish a reasonable alter- fairness, And, ed therefore, integrity public reputa “the native. the burden judicial should be on tion of proceedings.” on this issue Caviness v. and that’s way Co., the instruction reads Nucor-Yamato Steel jury. (8th Cir.1997) (internal quotations omitted); Olano, see also United States v. 24, 1997). (Apr. Trial Tr. at 73-74 From 725, 732, 113 S.Ct. objection and the District Court’s re- (1993) (“There L.Ed.2d 508 sponse, it must be an appellants is clear that all the ‘plain’ ‘error’ that conveyed to the and that ‘affect[s] District Court was their ”). objection proof rights.’ here, as to the burden substantial on The error if one, reasonable appellants alternatives. The there was was certainly “plain.” regard- argument instructional expressly Rights The 1991 Civil necessity, already which we ing overrule the Wards Title business VII amended however, Act, Second, does not appellants analysis. The addressed. have Cove Cove departure from Wards prescribe by failing erred argue the District Court ADEA, though even purposes other selection de- Entergy rule that had were amended provisions ADEA other vices, impact on a similar adverse without nor Supreme Court the Act. Neither have served employees, which would older question has addressed our Circuit legitimate interests. Entergy’s in ADEA cases of Wards Cove the status on against appellants specifically found Act.5 The Dis- the 1991 Civil after matter, Special Form No. see Verdict chosen, as have therefore could trict Court reversing and we find no basis for 27 at did, because the Wards Cove it to follow verdict, is one that on this jury’s which not state Rights Act did 1991 Civil reach. a reasonable could record ADEA in the was overruled Cove Wards Alternatively, the District Court the Dis appellants argue also context. apply have chosen not evi by excluding could erred certain trict Court state- that the current by reasoning a district will not reverse dence. We analy- of Title VII ment admissibility of evidence rulings court’s sis, reflected the 1991 Civil as prejudicial a clear and abuse “absent mentioned, Act, already apply. As should Frazer, F.3d Pittman discretion.” It in our Circuit. is not settled this issue Cir.1997). reviewed Having ju- on which reasonable also is matter record, of discretion we find no abuse here, if disagree. The error rists could warranting reversal. error, plain regarded be as any, cannot of the District Court judgment no basis thus it affords affirmed. of the District Court. for reversal reversal, ap- a second basis As HEANEY, Judge, dissenting. Circuit been should have pellants argue the record con- reading A careful matter of law on as a granted judgment pre- appellants properly me vinces First, appellants argue grounds. two instructional error. their claim of served by failing to rule erred the District Court objected to the district sufficiently They that use of proven had not Entergy instruc- ADEA court’s was a business necessi- ranking system justifica- tion, applied the “business which merely restates ty. argument This Moines, City Des In v. Supreme decided. Smith Court has "never 5. We note that the 1466, Cir.1996), Iowa, (8th theory we disparate impact 1470 decided whether 99 F.3d ADEA," liability is available under disparate impact Hazen claims are concluded that 604, 610, Biggins, 113 Paper 507 U.S. Co. v. relying cognizable under the ADEA 1701, (1993), but it has L.Ed.2d 338 S.Ct. 123 prior opinions, which we took of our three permit the ADEA does not suggested that See also Lewis law of the Circuit. be the ("Disparate treatment See id. such actions. Union, Community 114 F.3d Credit Aerospace Congress what captures the essence of ... 745, Cir.1997) (citing Smith for 750 ADEA.”); see id. at sought prohibit in the to rec our continues proposition that Circuit 611, ("When employer’s S.Ct. 1701 113 denied, claims), U.S. cert. 523 ognize such wholly factors other motivated decision 1392, 1062, L.Ed.2d 651 140 118 S.Ct. stig- age, problem of inaccurate than pre (1998). upon relied Two of the cases matizing stereotypes disappears.”). In a con- case, third Paper and in the dated Hazen Hazen, justices note curring opinion three Paper, post-dates opinion which our Hazen arguments that it is are substantial that "there than one more jury verdict was rendered impact anal- carry disparate improper to over opinion Paper and our year prior to Hazen 618, Id. at the ADEA.” ysis from Title VII to analy Paper mention of the makes no Hazen J., concurring). (Kennedy, 1701 113 Inc., F.Supp. Sipco, 828 Houghton v. sis. See Circuit, however, expressly ana- has not Our 1993), (S.D.Iowa part, 38 rev'd impact application of the lyzed the 1994). (8th Cir. Paper was F.3d 953 theory to ADEA cases since Hazen Rather, tion” you justification standard articulated Wards Cove that the exists. Atonio, Packing Co. plaintiffs have the ultimate burden of (1989); L.Ed.2d justi- the absence a business they proffered an alternative instruction fication, such that the use of the chal- applying pre-Wards ne- lenged procedure Age violated the Dis- cessity” standard. Because the instruc- in Employment crimination Act. preserved, tional error claim was I review In deciding whether defendants had presented the issue on the I con- merits. justification, you business should consid- clude that the Civil Act of er challenged procedure whether 2000e-2(k) (1994), U.S.C. overruled served, significant in a way, defendants’ dispa- Wards Cove as to ADEA legitimate employment An goals. insub- rate-impact claims and that in- justification stantial in this regard is not struction was the correct statement of the sufficient; however, necessary it is not light law. In of its incorrect instruc- procedure that the challenged was “es- tion, the district court should be reversed “indispensable” sential” or to the defen- and the matter remanded for a trial. new dants’ business. I. may Plaintiffs prove also seek to majority incorrectly concludes that defendants the challenged appellants’ instructional error pro claim is procedure merely “pretext” as a for dis- cedurally preserve barred. To a claim of crimination. In prove order to such a error, instructional appealing party pretext, plaintiffs prove must that other (1) distinctly: must state the matter ob procedures, similarly without a undesir- to, jected grounds effect, age discriminatory able would Cleaver, objection. See Cross v. 142 F.3d equally have served the defendants’ le- (8th Cir.1998) 1059, 1068 (quoting Dupre v. gitimate business interests. In deter- Inc., Eng’g, Fru-Con mining whether an alternative would (8th Cir.1997)); see also Fed.R.Civ.P. 51 have equally serving been suitable in (“[N]o party may assign as giv error the legitimate defendants’ business inter- ing or give the failure to an instruction ests, you should consider such factors as objects unless that party thereto before the cost of using proposed alterna- verdict, retires to consider its tive or other burdens associated with stating distinctly objected the matter proposed the alternative. and grounds objection.”). the Ap the pellants in this case did both. (Appellants’ App. at (emphasis 23-24 add- ed).)

During conference, ap- the instructional pellants objected to Instruction No. the In response instruction, to the court’s court’s ADEA jury in- appellants objected stating: struction, applied which the Wards Cove object Instruction No. we would justification” analysis. “business placing the proof of the burden or the on court’s instruction read: plaintiffs to what we believe are still prove Plaintiffs must that applica- the of the defendants. affirmative defenses specific tion of a employment practice or Age Under the Discrimination Act the procedure, face, while neutral on its defendants have the burden of disparate a impact caused on employees reasonable other age factors than as an years over 40 old. affirmative they defense and we would— plaintiffs If specif- demonstrate that a also' have—we also think that have ic employment practice procedure or the burden of proving why they did not caused such a impact, defen- use the alternative. dants must articulate a justifi- business (Tr. 24, 1997, Apr.

cation for of procedure. (emphasis the use of such at 73-74 However, added).) persuade defendants need not

1017 In of Accord proffered alternative absence reasonable alternatives. Appellants then J, pr majority, appellants e-Wards to the failed to ing which struction necessity” and standard “business use object Cove instruction’s of the Wards part: standard, read as justification” “business Cove if plaintiffs, opposed pr e-Wards verdict will be Cove “business Your are following facts plaintiffs proved necessity” majority’s standard. The read than not true: likely more true unduly ing of record is technical. First, employment has an defendant one, Appellants sepa not made but two procedure, ranking system, policy or objections rate to the use of the “business its to be neutral on may appear which First, justification” standard. face, actually in em- but which results proof objected to the of on what burden age being of older ployees years 40 or of they believed were affirmative defenses rate substantially higher at a terminated pr the defendant. Under both the e-Wards (the 40; plaintiff under employees than standards, and Cove Wards Cove once was employer need not that show plaintiff prima a facie case of establishes intent); discriminatory aby motivated disparate impact, may raise the defendant pre- an affirmative defense. Under Second, plaintiffs among standard, Cove defense is Wards a result were terminated as group who Colony necessity.” Kirby See employment application Co., Furniture F.2d Cir. procedure. policy or 1980) (citing Paper Albemarle Co. prove have plaintiffs If the failed to 405, 425, Moody, U.S. facts, you these then will either one of (1975)). L.Ed.2d 280 Under the Wards find for the defendant. standard, the defense is “business Cove proved you If have find justification.” Wards See facts, you plain- will find for these then 659, 109 2115. at tiffs, proved defendant has unless However, two de- the burdens these by a policy procedure justified is or pre-Wards fenses are different. A necessity age. unrelated to business places pro- both the burdens of standard justified policy or is busi- procedure persuasion on defendant duction if im- necessity it is substantial ness challenged practice justi- that the prove is de- legitimate needs of portance to necessity.” Kirby, by a “business See fied necessary fendant’s business stan- F.2d at The Wards Cove 703. achieve those needs. hand, dard, places only on other necessary policy procedure A production on defendant busi- legitimate to achieve defendant’s justification” a “business articulate would policy ness needs if an alternative Cove, 490 practice. challenged having needs serve those same while employees years plaintiff impact lesser U.S. 109 S.Ct. age older. persuading the burden of bears It is justification exists. id. that no added).) at 25 (Appellants’ App. (emphasis objecting the burden by clear then that to objec- The court overruled appellants proving alternative defenses proffered their instruc- rejected tion and justifi- objected to the use of “business ruled the bur- tion. The court then standard. alternatives, cation” proving den of reasonable (Tr. Apr. plaintiffs. should be on Second, objected bearing appellants to 74.) 24,1997, at proving reasonable alterna- the burden of Like defenses” tives. their “affirmative appel- first concludes that majority alterna- appellants’ “reasonable objection, procedur- error claim is lants’ instructional of their objection heart goes tives” appellants objected ally barred because pre- claim. Under instructional error proving to the burden of only bearing standard, necessity” claims, Wards Cove “business and no further statement of the the defendant bears the burden of proving ground objection necessary. was that no reasonable alternatives to the chal- Finally, record, in its construction of the available, lenged practice Kirby, see majority fails to policy consider the 613 F.2d at whereas the Wards Cove specific objection behind the requirement. justification” places standard purpose requirement is to proving burden of reasonable alternatives “compel litigants to afford the trial court plaintiff, on the see Wards opportunity to cure in- [a] defective Thus, at by 109 S.Ct. 2115. objecting prevent struction and litigants to from en- bearing burden of reason- suring new trial in the event of an ad- alternatives, able appellants specifically verse verdict by covertly relying on the objected to the court’s use of the Wards error.” Dupre, F.3d at (quoting justification” Cove “business standard. Missouri Pac. R.R. v. City Star Gravel majority next concludes that even Co., (8th Cir.1979)). Ap- assuming appellants’ objection encom- pellants provided the district court with passed the use of the Wards Cove “busi- opportunity. justification” standard, ness their claim is Again the matter fully still was briefed they barred because failed to make parties, objected providing clear that they court with the ground opportunity weigh the 1991 Rights arguments Civil Act overturned upon decide applicable Wards Cove as ADEA dispa- standard. Fur- ther, rate-impact conference, at the Again, claims. instructional majority’s appel- reading of objected the record is lants twice overly technical. to the use of the justification” Wards Cove “business stan- A reading common-sense of the record dard, giving the court opportunity another that, leads me to conclude at the time of applicable determine the standard and appellant’s objection, it was clear to all correctly instruct the jury. Because the involved, court, including the district district court was afforded adequate op- appellants objected ground on the portunity instruction, to cure its defective Wards Cove was overruled the 1991 policy specific-objection behind the re- Rights Civil Act. quirement was served. In their briefs on defendants’ motion for summary judgment, appellants both A reading common-sense of the record appellees fully argued the issue of whether reveals that sufficiently object- the 1991 Civil Act overruled Wards ed to the court’s instruction applying Cove for ADEA disparate-impact claims. justification” Wards Cove “business (See Def.Br. in Supp.Summ.J. 26-29; at standard, and that did so on the 44-47.) Opp.Summ.J. Pl.Br. at Fur- ground that the 1991 thermore, the district court considered the overruled Wards Cove regard with during issue trial and determined that the ADEA Thus, ap- claims. 1991 Civil Rights Act did no overrule pellants’ instructional error claim pre- was ADEA disparate-impact served. claims and that the Wards Cove “business

justification” (Tr. applied. standard II. 48-49.) Apr. The fact that the briefed, matter was argued, and decided Because instructional error by the court clearly indicates that at the preserved, claim was I reach the substan- objection time parties of the all presented: understood tive issue whether the Civil appellants objected that on the ground Rights Act of 1991 overruled Wards Cove that the 1991 Rights Act overruled as it applied to ADEA disparate-impact Wards Cove for ADEA disparate-impact claims.

1019 1967, disparate-impact ADEA. Thus claims were created passed the Congress In (1999). prohibit language § 621-634 from of to 29 U.S.C. Title VII Title part in from VII practices ADEA was created employment appeared facial- 1964, 42 Rights Act of U.S.C. of neutral, the Civil had ly discriminatory but that a 2000e-2000e-17, and its substantive §§ impact when applied. from Title “in haec verba” provisions taken language the ADEA Given of Pons, 575, U.S. Lorillard v. 434

VII. See VII, was taken almost verbatim from Title (1978). 584, 866, 40 55 L.Ed.2d S.Ct. 98 is surprising began it not that courts soon The ADEA reads: to claims recognize disparate-impact under employer for an It be unlawful shall See, e.g., v. ADEA. Harris- Leftwich (1) to or to hire or dis- fail refuse to 686, (8th College, Stowe State F.2d any individual or otherwise dis- charge Cir.1983); Corp., Holt Gamewell any against criminate individual with (1st 36, Cir.1986); EEOC v. Bor F.2d terms, con- compensation, to his respect Inc., den’s, 1394-95 ditions, employment be- privileges or of Cir.1984). It surprising also age; of such individual’s cause disparate-im courts the Title VII (2) limit, classify his segregate, to or pact analysis disparate-impact ADEA to way in would de- employees any which id. claims. See prive deprive any tend individual of or to Supreme In Court altered or otherwise opportunities employment by sig- Title standard VII an adversely employ- affect his status as nificantly lessening defendant’s bur- ee, age; or because of such individual’s plaintiff den. The Court held that if the (3) any of em- wage to reduce the rate prima facie case of established with comply in to this ployees order impact, only production the burden of chapter. prove shifted to the defendant to “busi- (1999). 623(a) § 29 U.S.C. “necessity,” rather justification,” ness than Similarly, Title VII reads: practice. challenged See Wards employment It be an unlawful shall 2115. The an practice employer'— persuasion of remained with (1) to fail or refuse to hire or dis- to plaintiff. See id. individual, any to or otherwise charge with the Court’s narrow con Discontent any with against discriminate individual Congress pass led struction of Title VII terms, compensation, to his con- respect the 1991 Civil Act overrule ditions, privileges employment, or be- S15,277 137 Cong.Rec. Wards Cove. See race, color, such cause of individual’s Danforth) (“[F]or (1991) (statement of Sen. sex, origin; national or religion, or years many nearly two of us have been limit, classify or his segregate, rights a civil attempting put together employment employees applicants for problems bill that would redress created deprive or any way in which would tend Supreme particularly Court of employment deprive any individual Griggs deci a bill that would reinstate the af- opportunities adversely or otherwise sion and that would overrule employee, because fect his status as color, race, do This amendment would religion, individual’s Cove decision. such sex, origin. that.”). analysis or national In section-by-section its Act, 1991 Civil Senate (1999). 42 U.S.C. 2000e-2 burden-of-proof issue that that “the stated Co., Griggs In Duke Power U.S. favor defen Wards Cove resolved 424, 431, 91 28 L.Ed.2d 158 favor of is resolved dants (1971), Supreme Court construed Title there plaintiffs,” and that “Wards only “not overt discrimi- proscribe VII to S15,473 Cong.Rec. by overruled.” See are practices also fair nation but (1991). history in the operation.” legislative The Act’s form, discriminatory in but Representatives virtually iden- standard broadly House of more construes ADEA Cong.Rec. tical. H9526 disparate-impact congress intended claims (statement Edwards) Rep. (noting of Civil Rights Act overrule Act of purpose Rights Civil applied Wards Cove as to Title VII and is to the allocation of the “restore burden ADEA disparate-impact claims. proof concept of of business neces- Second, language of the ADEA does sity Griggs, reject enunciated in as provide disparate-im not specifically for contrary interpretations of the Wards Cove pact by claims. Such claims arise analogy case”). to Title disparate- VII the same legislative history clearly The Act’s dem- impact Inc., analysis. See Borden’s Congress onstrates that intended that the 1394-95; F.2d at generally see Smith v. Rights 1991 Civil Act overrule Wards Cove Moines, City Des 1470-71 of Title VII claims. It (8th Cir.1996). Given that language language not clear from the of the 1991 the ADEA virtually and Title VII is identi Act, however, Civil Rights whether it over- cal and that ADEA disparate-impact ruled disparate- Wards Cove for ADEA VII, claims are carried over from Title impact claims. same analysis apply. should If we allow Civil Rights The 1991 Act mentions the disparate impact causes of action analo ADEA and amends its statute-of-limita- VII, gy to Title then logic dictates we provision provisions tions directing the should proof use the same burdens of used provide EEOC to notice to a claimant once under Congress Title VII. Because over agency’s investigation internal is con- disparate- ruled Wards Cove Title VII cluded. See Civil Act of impact claims, too so did it overrule Wards 102-106, § Pub.L. No. 105 Stat. 1071 Cove for ADEA claims. (1991) (codified 626(d) at 29 U.S.C. (1999)). Act is silent on the standard analysis ADEA disparate-impact III. Appellees argue claims. that this silence that Congress demonstrates did not intend pre-Wards Because the Cove “business to overrule Wards Cove as it necessity” applies standard to ADEA dis- 14.) (Appellee’s

ADEA. Br. at I disagree. claims, parate-impact the district court First, legislative history of the 1991 erred instructing on Wards Congress indicates that justification” Cove “business standard. intended that the Act overrule Wards Cove The court incorrectly placed for ADEA disparate-impact claims. Con- persuasion burden times, all at gress statutes, stated “remedial such leaving the defendant with only burden law, as civil rights broadly are to be con- of producing evidence justifying its use of 102-40, H.R.Rep. pt. strued.” No. at 34 the challenged ranking system. Because (1991), reprinted in 1991 U.S.C.C.A.N. error, of its instructional the district court (105 Stat.) 727. The ADEA is a remedial should be reversed and the matter re- statute to remedy age intended discrimina- manded for a new trial. Lorillard, tion in employment. See Thus,

U.S. at it is to be

broadly construed. The Wards Cove justification”

“business analysis is a far

narrower pre-Wards standard than the

Cove necessity” analysis. It

makes ADEA disparate-impact claims prove

more difficult because persuasion plaintiff remains with the

all times. pre-Wards Because the

Case Details

Case Name: William F. Allen v. Entergy Corp.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 8, 1999

Citation: 193 F.3d 1010

Docket Number: 98-1715

Court Abbreviation: 8th Cir.