In the case of Azel P. Smith, et al. v. City of Jackson, Mississippi, et al., 2004, a group of older police officers and dispatchers sued the city under the Age Discrimination in Employment Act (ADEA), claiming that a pay plan disproportionately benefited younger employees. The Supreme Court ruled in favor of the city by a 5-3 decision stating that disparate impact claims are recognizable under ADEA but plaintiffs must prove that discriminatory practices were intentional and not just impacting more on one age group than another unintentionally. In this case, it was found that there was no evidence to suggest any deliberate discrimination against older workers by the city's pay plan.

In the dissenting opinion for Smith v. City of Jackson, Mississippi (2004), Justice O'Connor, joined by Chief Justice Rehnquist and Justice Kennedy, argued that disparate impact claims should not be recognized under the Age Discrimination in Employment Act (ADEA). The dissenters contended that Congress did not intend to include such claims when it enacted ADEA. They pointed out that unlike Title VII of the Civil Rights Act which explicitly allows for disparate impact claims, ADEA does not contain similar language. Furthermore, they noted a fundamental difference between age discrimination and other types of employment discrimination: while race or sex are never relevant factors in employment decisions, age can sometimes be a legitimate factor to consider. Therefore allowing disparate impact claims could potentially undermine lawful decision-making processes based on reasonable factors other than age. Lastly, they expressed concern about judicial activism and cautioned against courts interpreting laws beyond what is written by Congress.