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Federal employees can’t sue for disparate impact under ADEA

Virginia Lawyers Weekly//December 2, 2021

Federal employees can’t sue for disparate impact under ADEA

Virginia Lawyers Weekly//December 2, 2021

The text, structure and legal landscape in which the Age Discrimination in Employment Act, or ADEA, was passed do not support a finding that the statute’s federal-sector provision encompasses disparate-impact liability.


Dr. Jane DiCocco brought Title VII and Age Discrimination in Employment Act, or ADEA, claims because she failed an allegedly discriminatory physical-fitness test that was a condition of her federal employment and was told to either retake the test, resign or be fired. She resigned. The district court dismissed her complaint for lack of Article III standing, finding that her resignation did not constitute an “adverse employment action” that could serve as the basis of either claim.


The district court began its analysis by finding that Dr. DiCocco failed to state a valid cause of action because she alleged no injury and therefore lacked standing. But this approach improperly conflated the threshold standing question with the merits of her claims. Standing does not turn on whether a plaintiff has definitively stated a valid cause of action.

Dr. DiCocco has adequately pleaded an injury in fact. Dr. DiCocco alleges that she was injured by a loss of employment and the resulting loss of wages and other benefits. Such harms are “classic and paradigmatic” injuries for standing purposes.

Even so, a plaintiff’s injury is not fairly traceable to the defendant’s action if the plaintiff “independently caused his own injury.” But Dr. DiCocco’s allegations—which must be taken as true at this stage—do not show that she independently caused her own injuries. Dr. DiCocco’s complaint alleges that Bureau of Prison, or BOP’s, ultimatum, which followed from the allegedly discriminatory policy, was the but-for cause of her injuries. Because Dr. DiCocco’s complaint adequately alleges an injury in fact, causation, and redressability, she has standing to raise her ADEA and Title VII claims in federal court. Her complaint should not have been dismissed on this ground.


Dr. DiCocco argues that the BOP’s fitness test disparately impacts those older than 40. The government argues, however, that the ADEA provision that governs federal-government employees, 29 U.S.C. § 633a(a), does not provide for a disparate-impact cause of action. Without a cause of action, Dr. DiCocco’s claim fails. The government continues, explaining that because the statute does not provide for such a claim, Congress has not waived the federal government’s sovereign immunity for a federal employee’s ADEA disparate-impact claim.

The court concludes that the language of § 633a(a) does not create a disparate-impact cause of action. The arguments that emerge from two Supreme Court decisions—based on the statute’s text, the law’s structure and the legal landscape in which the law was passed—do not support finding that the ADEA’s federal-sector provision should also encompass disparate-impact liability. And because the government’s waiver of sovereign immunity is limited to claims by persons “aggrieved” under the section, her claim is not within the scope of that waiver.


The district court erred in dismissing Dr. DiCocco’s complaint for lack of standing based on its analysis of the merits of her claim. But the dismissal of her ADEA claim must be affirmed because the government’s waiver of sovereign immunity does not cover disparate-impact claims. Though the government asks that this court address the merits of her Title VII disparate-impact claim on appeal, it remands that claim for consideration first by the district court.

Affirmed in part, reversed in part and remanded.

Concurring/dissenting opinion

Floyd, J., concurring in part and dissenting in part:

I agree with the majority that Dr. DiCocco possesses Article III standing to bring her disparate-impact claims under the ADEA and Title VII. I also concur with the majority’s decision to remand Dr. DiCocco’s disparate-impact claim under Title VII for substantive findings in the first instance.

But rather than similarly remanding Dr. DiCocco’s disparate-impact claim under the ADEA for findings in the first instance, the majority reaches its own debatable holding. Diverging from our sister circuits and overruling our prior precedents, the majority holds that the ADEA does not afford a disparate-impact cause of action for federal employees. In my view, the ADEA does not tolerate this holding under the traditional tools of statutory interpretation and our precedents.

DiCocco v. Garland, Case No. 20-1342, Nov. 17, 2021. 4th Cir. (Richardson), from EDVA at Richmond (Gibney). Jay J. Levit for Appellant. Jonathan Tyler Lucier  for Appellee. VLW 021-2-310. 47 pp.

VLW 021-2-310

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