The U.S. Chamber filed an amicus brief in the Third Circuit urging the court to reject plaintiff’s transparent attempt to manipulate the size of the ADEA’s protected age group class to manufacture a disparate impact claim. The Chamber argued that the disparate impact comparison must be made between those who are in the ADEA’s “protected age group,” which is those 40 and over, and those who are not; rather than, as plaintiff argued, any arbitrary slice of the protected class that a plaintiff chooses. Plaintiff’s theory, the Chamber explained, is wholly unsupported by the ADEA’s text and would lead to unlimited gerrymandered segmentation. In addition, the Chamber noted that every circuit to address this issue of ADEA protected class segmentation has rejected plaintiff’s expansive theory and urged the court to avoid creating an unnecessary split among the circuits.
Neal D. Mollen and Regan A.W. Herald of Paul Hastings LLP served as counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.