Scotus may review prior employment discrimination cases

_AGE DISCRIMINATION_ As discussed in last year’s preview, a Fourth Circuit panel in _DiCocco v. Garland_, issued an opinion that the federal-sector provisions of the Age Discrimination in

Employment Act (“ADEA”) did not permit a claim founded on a “disparate impact” theory of liability. The Fourth Circuit vacated the panel’s ruling and granted rehearing en banc. 18 F.4TH 406

(4TH CIR. 2021), _rehearing en banc granted by_, No. 20-1342, 2022 WL 832505 (Mar. 21, 2022). When the Department of Justice changed its position to recognize the applicability of this

theory, the court remanded the case to the district court for reconsideration. This favorable position regarding the applicability of disparate-impact claims remains the status quo in the

Fourth Circuit. On remand, the plaintiff successfully fought off a motion to dismiss on other grounds, i.e., whether she suffered an “adverse employment action” when disciplined for failing

to retake a “Physical Abilities” test.  _Id_., No. 3:19-cv-00159 (E.D. Va., Apr. 27, 2023) (ECF No. 38). In the same vein, last year we highlighted the PROTECTING OLDER JOB APPLICANTS ACT

(“POJA”), which, if enacted, would amend SECTION 4(A)(2) OF THE ADEA to ensure that older job applicants in both the federal and private sectors could bring disparate impact claims to

challenge unlawful hiring practices. This would overturn those court decisions holding that the ADEA’s disparate impact provision does not protect job applicants. _See, e.g._, _KLEBER V.

CAREFUSION CORP_., 888 F.3D 868 (7TH CIR. 2018), _vacated and contrary result entered on reh’g en banc_, 914 F.3D 480 (7TH CIR. 2019). The POJA Act was reintroduced in 2023 and referred to

the Committee on Education and Workforce.   There has been recent activity with respect to arbitrating claims of age discrimination under the ADEA.  In June, a bipartisan group of senators

introduced the Protecting Older Americans Act (“POAA”). Building off the recent actions to ban forced arbitration in cases involving sexual harassment and sexual assault in the workplace,

the POAA would ban forced arbitration in cases alleging age discrimination in violation of the ADEA. If passed, the law would significantly expand access to courts for older adults facing

age discrimination in the workplace. _DISABILITY DISCRIMINATION_ Although the COVID-19 pandemic has receded and cases addressing the virus have declined in number, remote work has grown as a

subject of disability employment rights litigation. While it may be too soon to expect cases to be presented to the Court for resolution in this area, the proliferation of disputes

regarding employee requests for remote work, often as a matter of disability accommodation, suggests that this aspect of employment litigation under the Americans with Disabilities Act of

1990 and the Rehabilitation Act of 1973 is likely to become a subject matter for the Court within the next few years.