Court Broadens Scope of Age-Discrimination Protections

NY Times ^ | March 30, 2005 | DAVID STOUT

[neverdem]

WASHINGTON, March 30 - The Supreme Court ruled today that older workers can, in some circumstances, recover damages from their employers for harm caused by age discrimination even if the harm was not deliberate.

The court, ruling 5 to 3 in a case closely watched by business interests, held that the 1967 Age Discrimination in Employment Act does allow such lawsuits. But the court also made clear that the estimated 75 million people covered by the law - workers over age 40 - must clear a high threshold of evidence to prevail.

Justice John Paul Stevens and the four other justices who joined him in the main thrust of today's ruling alluded to earlier Supreme Court findings that good faith by employers "does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."

Justice Stevens, using the technical language that has accompanied years of court arguments over interpretation of the law, said the act does allow recovery of damages in "disparate impact" cases - that is, in instances in which the effect on older workers is unintentional - as well as "disparate treatment" cases, when the effect is clearly deliberate.

Justice Stevens was joined on the central issue of the ruling by Justices Antonin Scalia, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Laurie McCann, a senior lawyer for the AARP retiree lobby, called the ruling "a major boost for the fight to eliminate age discrimination in the workplace."

"Evidence that an employer is intentionally out to get older workers is very hard to come by," Ms. McCann said in an interview with The Associated Press.

The five justices also emphasized, in a section sure to offer relief to businesses and their lawyers, that some effects on older workers are unavoidable and perfectly reasonable. "It is not enough to simply allege that there is a disparate impact on workers," Justice Stevens wrote.

Zach Fasman, a labor and employment lawyer with the Paul Hastings firm in New York City, doubted that the ruling would send shudders through corporate boardrooms. "I don't think it will have as significant an impact as it would appear from early news reports," Mr. Fasman said, predicting that businesses would effectively use the "reasonableness test" that the court elaborated on today.

A section of the Civil Rights Act of 1964 bars employment discrimination on the basis of race or sex. The age-discrimination act passed three years later was meant to offer similar protections for older workers, but with an important distinction: the age-discrimination act offers employers an exemption "where the differentiation is based on reasonable factors other than age."

That distinction recognizes that age "not uncommonly has relevance to an individual's capacity to engage in certain types of employment," wrote Justice Stevens, who will be 85 on April 20.

The issues in the case decided today, Smith v. City of Jackson, No. 03-1160, did not deal directly with age. The plaintiffs, 30 police officers over age 40 in Jackson, Miss., contended that new wage scales, adopted in 1998 and intended to make pay for more recently hired officers more competitive with other departments in the region, was unfair to older officers.

The justices in the majority today, as well as the three who disagreed with them on allowing people to sue for indirect damages caused by age discrimination, ruled against the Jackson police officers. All eight justices concluded that the officers had failed to make a case on the merits of their lawsuit, and that the city's goal of bolstering its police force through pay-scale adjustments was reasonable, no matter the impact on older officers.

The ruling partly affirmed holdings by a federal district court and the United States Court of Appeals for the Fifth Circuit, in New Orleans, which had dismissed the officers' suit. Those courts had gone even further, holding that the age-discrimination act could not be interpreted as broadly as the plaintiffs wanted.

But since federal courts in other circuits had come to different conclusions, the issue was ripe for Supreme Court review, especially since the Equal Employment Opportunity Commission has for more than 20 years interpreted the age-discrimination law broadly.

Justice Sandra Day O'Connor, along with Justices Anthony M. Kennedy and Clarence Thomas, disagreed with the key finding by Justice Stevens and his four colleagues: that the 1967 act could cover nondeliberate effects of age discrimination. The dissenters said Congress had curbed the effects of the law through language that showed an "abundance of caution."

Chief Justice William H. Rehnquist, who has been in ill health, took no part in today's case.

[ex-Texan]

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