Older Workers Get a New Tool to Fight Age Discrimination ; A Supreme Court Ruling Wednesday Opens the Door to Lawsuits regarding Age Bias That May Be Unintentional

Article excerpt

Older workers don't necessarily have to prove an employer intentionally favored younger employees in order to sue under a federal age discrimination law.

In an important ruling expanding the scope of the Age Discrimination in Employment Act (ADEA), the US Supreme Court on Wednesday said workplace policies that disadvantage older workers - even if not directly caused by age bias - can be a form of illegal age discrimination.

Despite that decision, the justices ruled against a group of 30 members of the Jackson, Miss., police force who had filed an age discrimination suit based on a city pay plan that granted more lucrative benefits to younger workers than older ones.

The high court said that while so-called "disparate impact" claims are permitted under the ADEA, the Jackson police officers had not demonstrated enough of a claim to survive dismissal.

Justice John Paul Stevens wrote the majority opinion, which was joined in full by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Justice Antonin Scalia provided the key fifth vote on the disparate-impact issue, but said he reached the same result by deferring to a government agency's interpretation that the ADEA permits disparate-impact claims.

Justice Sandra Day O'Connor dissented on the disparate-impact issue, joined by Justices Anthony Kennedy and Clarence Thomas. Chief Justice William Rehnquist did not participate.

The 1967 ADEA protects all workers aged 40 and older. Roughly half of America's civilian workforce is over 40, and the proportion of older workers is growing. Wednesday's ruling in Smith v. City of Jackson puts employers on notice that it may not be enough to avoid policies and practices that use age as a proxy in employment decisions.

In addition to outlawing discriminatory treatment, the ADEA also bars certain actions that result in a discriminatory impact on protected individuals aged 40 and older, the majority justices said. But the majority was careful to limit the potential scope of that holding, saying that a plaintiff must show more than mere disparate impact to prevail.

The ruling comes as a result of a 2001 lawsuit challenging an effort by the City of Jackson to bring its salaries up to regional standards. In carrying out the salary plan, officers and police dispatchers with five or fewer years of tenure received proportionately greater raises than employees with more than five years experience.

Most of those with five or more years of experience were over 40 years of age and thus covered by the age discrimination law. They sued under the ADEA, claiming that giving younger workers disproportionately higher raises than older workers is a form of age discrimination. …

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