The Lawletter Vol 48 No 2
Nadine Roddy, Senior Attorney, National Legal Research Group, Inc.
In a most unusual case recently before the federal district court sitting in Nevada, Barnes v. Kijakazi, No. 3:18-cv-00199-MMD-WGC, 2023 WL 3007904 (D. Nev. Apr. 19, 2023), a pro se plaintiff asserted a claim of disparate-impact discrimination against the Social Security Administration (SSA) under the Age Discrimination in Employment Act (ADEA). It has been less than 20 years since the Supreme Court held in Smith v. City of Jackson, 544 U.S. 228 (2005), that disparate-impact claims are cognizable under the ADEA. The scope of disparate-impact liability is narrower under the ADEA than under Title VII, and the general requirement of statistical evidence to prove the elements of a disparate-impact case still applies. Thus, it is unusual for a pro se plaintiff to bring such a suit under the ADEA—even an attorney plaintiff.
The plaintiff in Barnes was a lawyer who had applied unsuccessfully for the position of attorney advisor in a soon-to-be-opened SSA hearing office in Reno, Nevada. She sued the agency through its Acting Commissioner and the hiring official who handled her application. She alleged that the official had recruited and hired five attorneys for the new office in a manner that had a disparate impact on older applicants such as herself. As part of his recruitment process, the official advertised the positions externally with an online job board maintained by the University of Nevada’s law school. He also recruited from the alumni branch of the Peace Corps.
Late in the recruitment period, the applicant contacted the SSA’s Human Resources Center to inquire whether the new office was hiring attorneys. The official then contacted her directly, described the application process, and told her that she should apply promptly because the recruitment period was closing. Unlike the law school and Peace Corps applicants, the official did not provide her with a copy of the job posting. Nevertheless, the applicant applied for the job, and the official confirmed that she met the minimum qualifications. She was granted an interview but ultimately was not hired. Of the five successful candidates, only one was age 40 or older.
The applicant’s theory of the case was that, despite the SSA’s facially neutral recruitment and hiring practices for attorney advisor positions, its officials violated the ADEA by advertising the open positions for the new office with two institutions that had populations well under age 40—practices that had a disproportionate and adverse impact upon the applicant and other job seekers age 40 and over. In support of her case, the applicant offered statistics on the median age of lawyers nationwide (47.1 in 2020 and 46.5 in 2021) and the average age of licensed attorneys in Nevada (47 in 2011). She also provided statistics tracking the ages of the 27 applicants and the five candidates hired for the positions in the new office. She asserted that only two of the 27 applicants (including herself) were over age 40, and that the average age of the five hired candidates was 33.2 years old—an age significantly lower than the Nevada and national lawyer averages.
In the court’s view, this evidence was insufficient to establish the element of causation for purposes of the applicant’s prima facie case. At best, it showed a mere correlation rather than a “direct nexus” between the official’s employment procedures and their disparate impact on applicants by virtue of their age. Additionally, there were “gaps and deficiencies” in other statistical evidence she presented. The court ultimately ruled that the applicant had not established the causation element of her prima facie case, and thus the defendants were entitled to summary judgment.
