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U.S. Supreme Court

Court expands rules on age bias - a little

Workers over 40 will have an easier time bringing cases to court, but will have to meet a high burden of proof.

By BILL ADAIR and MARK ALBRIGHT
Published March 31, 2005

WASHINGTON - Workers older than 40 will have an easier time proving age discrimination under a ruling Wednesday by the U.S. Supreme Court, but the court made it clear that workers still have a significant burden to win a case.

Attorneys called the decision a mixed bag. The ruling gives workers a new avenue for cases that had been unavailable in most federal circuits, but the court said workers still must meet a high threshold to prove they were victims of discrimination.

"It opens a window to a whole lot of claims, but it remains to be seen how many will actually get through the door," said Phyllis Towzey, a St. Petersburg lawyer who specializes in employment law.

The ruling centers on a legal concept known as "disparate impact," which has been used in race and sex discrimination cases under the Civil Rights Act of 1964. Plaintiffs didn't have to prove the discrimination was intentional. They merely had to show that the "disparate impact" of policies caused unintentional discriminatory acts, which put the burden on the employer to justify the disparity.

People claiming age discrimination, however, had no such protections. They needed a smoking gun, evidence such as a memo or a witnessed statement saying: "We're getting rid of the old people because they cost too much."

Wednesday's ruling marks the first time the court showed a willingness to expand "disparate impact" to include age-based discrimination cases.

"Finding the smoking gun is very difficult in age discrimination because employers have learned to cleverly couch their actions in ways that go right up to the edge," said Bonnie Reggens, a St. Petersburg employment lawyer. "What's probably going to happen next is the courts will define new defenses under the heading of "reasonable effects other than age.' But this is a good step."

About 75-million people - roughly half the nation's work force - are covered by the decision because they are older than 40, the age when the protections begin under federal law.

The ruling allows older workers to make a disparate impact claim regardless of intent; but at the same time, it permits an employer to cite "reasonable" factors, such as cost-cutting, to justify a practice that penalizes older workers so it prevails at trial.

Bill Gould, a law professor at Stanford University and former chairman of the National Labor Relations Board, said the court opened a new avenue for cases but provided employers a flexible standard to defend themselves.

"I don't think it will get much easier to prevail" in an age discrimination suit, he said.

There have been many prominent age discrimination employment class action cases in the Tampa Bay area in recent years. Most alleged that big layoffs targeted older workers who are paid bigger salaries and receive more lucrative benefits. It is debatable whether any would have turned out differently under the new court ruling.

The U.S. Supreme Court in 2002 dismissed a 1995 suit in which veteran Florida Power Corp. workers alleged they were targeted because of their age while the company cut its payroll to become a more attractive takeover target. About 70 percent of the 1,200 workers who lost their jobs were older than 40. Also tossed out in the 1990s were similar cases filed by workers laid off by plant closings at a nuclear trigger factory in Largo, a Lykes-Pasco Inc. citrus processing plant in Dade City and an Anheuser-Busch brewery in Tampa.

Wednesday's ruling involved a case filed by 30 officers and dispatchers in Jackson, Miss., who said the city gave substantially larger pay raises to employees with five or fewer years of tenure; as a result, the policy hurt older employees. They argued they were victims of age discrimination.

The lower courts threw out the suit, reasoning that disparate impact claims were barred. In its 5-3 ruling Wednesday (Chief Justice William Rehnquist did not vote because he was ill when the case was argued last fall), the Supreme Court reversed that decision and said those claims should be permitted.

That was the part of Wednesday's decision that made it easier to bring an age discrimination suit. But the court's second opinion on the case illustrated just how difficult winning such cases remains. The court unanimously rejected the employees' claim, saying the city offered a reasonable explanation that it was trying to make salaries for junior officers more competitive.

"It is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact," Justice John Paul Stevens, at 84 the court's oldest justice, wrote in the opinion. The employee must identify the "specific employment practices that are allegedly responsible" for the disparity.

John Crabtree, a Miami lawyer who represented the Florida Power employees, said the ruling helps both sides. "It's definitely a good day for older workers, but there is a silver lining for employers, too."

Information from the Associated Press was used in this report

[Last modified March 31, 2005, 01:52:05]


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