High court expands age bias protections
Employees can sue firms even if harm was not intentional
WASHINGTON -- The Supreme Court made it easier to sue for age discrimination on the job yesterday, ruling that older workers may take their employers to federal court even in cases where the alleged adverse impact on them was not intentional.
A five-justice majority of the court said the federal Age Discrimination in Employment Act, which protects all workers over the age of 40, permits a limited range of ''disparate impact" lawsuits, or claims that older workers are disproportionately harmed by policies an employer applies to its entire workforce.
Such claims, which have long been permitted for racial discrimination but which had been frowned upon by most federal Appeals Courts in the context of age, are generally easier to prove than charges of intentional discrimination, legal analysts said.
The court's decision comes at a time when the last of the baby boomers are now in their 40s. Just over half of the nation's 147 million-member labor force is 40 or older, according to the Bureau of Labor Statistics.
However, age discrimination complaints have not necessarily been rising. The Equal Employment Opportunity Commission received 17,837 complaints in fiscal 2004, as compared to 19,124 in fiscal 2003. Very few of them resulted in litigation, however.
Advocates for the elderly said the court's ruling means employers will have to take greater care to show that policies such as pay-scale adjustments or layoffs do not unreasonably affect older members of their workforces.
Job cutbacks through early retirement ''buyouts" are sometimes the subject of age-discrimination complaints. But amendments to the act in 1986 eliminated mandatory retirement ages, except for certain top executive positions and public safety jobs.
''I don't think there is going to be a landslide of suits in the District Courts, but in those appropriate cases where there is a disparate impact against older workers, workers will be able to bring them," said Laurie McCann, senior attorney for AARP Foundation Litigation.
But employers said the decision will impose higher legal and administrative costs on them, with little real benefit to workers.
''It is alarming because they have opened the door to a whole mass of new litigation, and it's going to be expensive . . . even though employers will probably win," said Ann Reesman, general counsel of the Equal Employment Advisory Council, a group made up more than 330 large private employers.
Four members of the court majority -- justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- based their conclusion in the case, Smith vs. City of Jackson, on the text of the age discrimination act, which was adopted in 1967.
They argued that its language was similar to provisions of the 1964 Civil Rights Act that barred job discrimination based on race -- provisions the court has read to permit disparate impact suits.
Justice Antonin Scalia concurred on the outcome, but did not accept the other four's reasoning. He cited instead the fact that the EEOC had already interpreted the act to permit disparate-impact suits, and said the court should defer to that agency's view. Still, all five members of the majority agreed that age discrimination disparate impact suits should be more limited than racial discrimination suits. Older employees must identify a specific policy or practice that harmed them, they ruled.
