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Threshold Eased for Age-Bias Lawsuits

Claims Not Dependent On Employer Intent, Supreme Court Rules

By Charles Lane
Washington Post Staff Writer
Thursday, March 31, 2005; Page A01

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 in which the alleged adverse impact on them was not intentional.

A five-justice majority said the federal Age Discrimination in Employment Act (ADEA), which protects all workers older than 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.

_____From Findlaw_____
Opinion: Smith v. City of Jackson

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 when the last of the baby boomers are in their forties. 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, compared with 19,124 in fiscal 2003. Very few 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 workforce.

Job cutbacks through early retirement "buyouts" are sometimes the subject of age-discrimination complaints. But amendments to the ADEA 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 E. Reesman, general counsel of the Equal Employment Advisory Council, an organization of more than 330 large private employers.

Four members of the court majority -- Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- based their conclusion in the case, Smith v. City of Jackson, No. 03-1160, on the text of the ADEA, 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 justices' reasoning. He cited instead that the EEOC had already interpreted the ADEA 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 disparate-impact suits based on age discrimination should be more limited than racial discrimination suits. Older employees must identify a specific policy or practice that harmed them, they ruled.

This limitation was necessary, Stevens wrote, because the ADEA allows employers to treat older workers differently because of "reasonable factors other than age."

"Age, unlike race or other classifications protected by [the Civil Rights Act], not uncommonly has relevance to an individual's capacity to engage in certain types of employment," Stevens wrote.

Accordingly, Stevens wrote, the majority agreed with a federal appeals court that the case of 30 police department employees in Jackson, Miss., before the court should be dismissed.

The employees had said that a new pay plan gave greater raises to officers younger than 40 than to older officers. But, Stevens wrote, this was an "unquestionably reasonable" attempt by the city to keep its police salaries competitive with those of nearby jurisdictions.

Justice Sandra Day O'Connor dissented, joined by Justices Anthony M. Kennedy and Clarence Thomas. "Congress did not intend to authorize [disparate-impact] claims," she wrote.

However, O'Connor's opinion did express agreement with the majority that, if such claims are to be allowed, then they should be "strictly circumscribed."

Chief Justice William H. Rehnquist did not participate in the case; it was argued in November, when he was receiving aggressive treatment for thyroid cancer.

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