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The San Diego Union-Tribune

Supreme Court hears case of unintended age discrimination


November 4, 2004

WASHINGTON – The U.S. Supreme Court struggled yesterday over whether workers 40 and older may sue their employers for policies that treat older workers worse than younger ones, even when the company said it didn't intend to discriminate against those employees.

Thomas Goldstein, a lawyer representing 30 older police officers from Jackson, Miss., who sued the city over a plan to increase recruitment by increasing the pay of new officers faster than more experienced officers, said a policy that hurts older workers should be illegal, regardless of whether the employer meant to discriminate against them.

"It doesn't matter to the employee if he was intentionally discriminated against or unintentionally discriminated against," he told the court. "The only thing that matters to him is that he loses his job or gets proportionally less pay."

Glen Nager, a lawyer for the city of Jackson, said punishing employers who implement policies that unintentionally hurt older workers would cripple the ability of companies to change their workforce. He said "nearly every employment policy" disproportionately affects older workers.

"It would be illegal for an employer to start requiring a college degree for certain types of jobs or to attempt to get better new employees by increasing pay for lower level jobs," he said. "Both of those policies would unintentionally hurt older workers."

Nager appeared to raise the hackles of several justices when he said the court should acknowledge a worker's performance often declines with age and employers should be allowed to take that into consideration.

"It's painful to say, especially to a court with members a little older than I am, but skills diminish over time," he said.

Justice Ruth Bader Ginsburg, 71, shot back that composer Giuseppe Verdi wrote the opera "Falstaff" when he was in his 70s.

The average age of the justices is 70.

Nager quickly replied, "There may be some occupations, such as being a judge, where wisdom and experience grow over time, improving a worker's abilities."

The court's decision in the case is particularly important with an aging U.S. workforce. About half of all employees in the country, more than 70 million people, are over 40 and protected by the 1967 Age Discrimination in Employment Act.

The law specifically states older employees may sue employers and win if they can prove they were targeted for a firing, demotion or other employment action because of their age.

However, courts haven't resolved one of the most disputed issues in civil rights law: whether employees who claim age discrimination must prove that management deliberately and intentionally singled out older workers for unfavorable treatment.

The answer is decisive since many age discrimination claims falter because they lack proof that employers intended to harm older workers. Courts generally have ruled that adverse action taken against older workers, including mass layoffs and other policies that have an unfavorable impact, don't violate the age-bias law because they do not directly relate to age, even though they might have a disparate impact on older workers.

Despite these hindrances, age discrimination cases are increasing rapidly, largely because of the graying of the workforce. In the last year, federal courts decided nearly 300 age discrimination cases.

Claims of age bias make up about one-fourth of the discrimination charges filed with the Equal Employment Opportunity Commission, making up more than 19,000 of the 77,300 claims in 2003.

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© Copyright 2004 Union-Tribune Publishing Co.