Age discrimination--disability benefits; public sector. Arnett v. California Public Employees Retirement System, No. 98-15574, __F.3d __(9th Cir.1999)

Under the statutory formula for determining disability retirement benefits for California public safety employees, the amount of benefits differs solely on the basis of the retiree's age when hired. This formula may violate the Age Discrimination in Employment Act (ADEA) under a disparate treatment theory if the employees can prove discriminatory motive. While a formula for determining benefits that is based upon actual years of service does not violate ADEA, a formula based upon potential years of service as determined with reference to a presumed retirement age may violate the act. The disparate impact theory may be used to prove violation of ADEA in the Ninth Circuit.