In A Reversal, U.S. Appeals Court OKs Disparate Impact Claim In VA Age Discrimination Case

The court reinstated a lawsuit against the U.S. Dept. of Justice filed by a former prison psychiatrist who could not pass an arduous physical fitness test and was forced to quit.

Photo by Victor Freitas on Unsplash

If Dr. Jane DiCocco couldn’t win her age discrimination lawsuit, you had wonder…

The 67-year-old psychiatrist accepted a job with the U.S. Bureau of Prisons in 2014. She was told she had to pass a physical abilities test, which included dragging a 75-pound dummy at least 694 feet for three minutes, climbing a ladder to retrieve an object within seven seconds, completing an obstacle course in 58 seconds, running a quarter mile and handcuffing someone in under three minutes, and climbing three flights of stairs in 45 seconds while wearing a 20-pound weight.

Insanity?

To her eternal credit, Dr. DiCocco took the test once but failed and decided there was no point in making a second attempt within the prescribed 24-hours. She resigned rather than being fired.

U.S. District Judge John A. Gibney, Jr., dismissed DiCocco’s lawsuit at the first opportunity, finding she had not suffered an “adverse employment action” under the Age Discrimination in Employment Act of 1967 (ADEA) and Title VII of the Civil Rights Act of 1964.

In other words, Judge Gibney said Dr. DiCocco lacked standing to bring the case because her injuries were self-inflicted - she quit.

A panel of judges from the U.S. Court of Appeals for the Fourth Circuit in Richmond, VA, then ruled 2-1 the ADEA did not permit “disparate impact” lawsuits. These are lawsuits that allege seemingly neutral policies have a disproportionate and adverse impact on a member of a protected class. The panel’s ruling, which departed from several other federal circuits, was based on obtuse textural analysis of statutory “language and structure.”

So Dr. DiCocco was left without any recourse despite what many would consider to be a classic case of systemic age discrimination.

On Thursday, another three-judge panel of the Fourth Circuit appeals court reinstated Dr. DiCocco’s lawsuit, including her disparate impact claim, and remanded the case back to the lower court.

The panel’s decision represents a complete turnaround with respect to the ADEA and disparate impact claims and now permits older workers to file ADEA disparate impact claims in the Fourth Circuit, which includes Maryland, North Carolina, Virginia and West Virginia.

Why the turnaround?