Opinion
Civil Action 04-1301.
August 9, 2004
ORDER
AND NOW, this day of August, 2004, upon consideration of Defendant Unisys Corporation's Motion to Dismiss Plaintiffs' disparate impact discrimination claims under Fed.R.Civ.P. 12(b)(6), it is hereby ORDERED that the Motion is DENIED without prejudice.
It has long been the rule that in considering motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the district courts must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom," Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000) (internal quotations omitted). A motion to dismiss can be granted only where the allegations fail to state any claim upon which relief can be given. See, Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997).
Defendant, Unisys Corporation, argues that Plaintiffs fail to state a claim in so far as they allege disparate impact liability. Viewing the facts under current law in a light most favorable to the Plaintiffs, we find the complaint sufficiently states claims against the Defendant under the ADEA.
The United States' Supreme Court has articulated the difference between disparate treatment and disparate impact cases in Hazen Paper Co. v. Biggins, 507 U.S. 604 (U.S., 1993). In a disparate treatment case, the trier of fact asks whether an employer has treated an employee or group of employees differently and adversely because of their age (or other protected characteristic). By contrast, A disparate impact case involves a facially neutral employment practice that nonetheless adversely affects a single protected group. Id. at 609. The narrow holding in Hazen made disparate impact theory unavailable in an ADEA suit when it was evident that the employer's action had been motivated by factors other than the employee's age. Id. at 609, 613. The U.S. Supreme Court has not decided, however, whether disparate impact is a viable theory in general under the ADEA.Id. at 613. The Third Circuit's Court of Appeals, in DiBiase v. SmithKline Beecham Corp., 48 F.3d 719 (3d Cir., 1995) has gone only so far as to say that disparate impact theory should not be applied as a matter of course, suggesting that "it is doubtful that traditional disparate impact theory is a viable theory of liability under the ADEA" in the wake of Hazen. DiBiase at 732, 734. Nevertheless, it has expressly declined to rule on the availability of disparate impact theory under the ADEA, stating that it is an open question that has yet to be addressed by the U.S. Supreme Court. Id. at 734. As Plaintiff correctly points out, this question is currently under review by the U.S. Supreme Court in Smith v. City of Jackson, 124 S. Ct. 1724 (2004).
The Defendant urges this court to look to the ADEA's text and its underlying policy considerations to find that disparate impact claims under the ADEA are unavailable. In the interest of fairness, however, we decline to rule on this issue at this stage of the proceedings given its pendency before the Supreme Court inSmith. Defendant is free to re-raise this argument at summary judgment, should the Supreme Court rule in its favor. For these reasons, the Motion to Dismiss is denied.