Footnote 91

The Supreme Court has not decided whether disparate impact claims can be raised in an ADEA context. Three justices have intimated a negative view. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 618 (1993) (Kennedy, J., concurring, joined by Rehnquist, C.J., and Thomas, J.). The lower courts are divided on the issue. Compare Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir.) (holding that the ADEA does not allow for claims of disparate impact), cert. denied, 528 U.S. 811 (1999), with Lewis v. Aerospace Cmty. Credit Union, 114 F.3d 745 (8th Cir. 1997) (holding that disparate impact theory is viable under the ADEA), cert. denied, 523 U.S. 1062 (1998). Recently, the Court had an opportunity to resolve the issue but then chose to avoid it, dismissing its writ on the ground that certiorari had been improvidently granted. Adams v. Florida Power Corp., 255 F.3d 1322 (11th Cir.), cert. granted, 534 U.S. 1054 (2001), and cert. dismissed, 535 U.S. 228 (2002).