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Jewish World Review April 7, 2005 / 27 Adar II, 5765 Older workers find a friend in court By Ruben Navarrette Jr.
http://www.JewishWorldReview.com |
It was easy to miss with so much else happening in the world, but there was a hugely important decision last week by the U.S. Supreme Court involving older workers and how they're treated on the job.
The justices made it easier for workers age 40 and older to sue employers for age discrimination, even if the workers can't prove that the employer deliberately intended to discriminate. All that is needed for proof, the court said, is that a given policy, requirement or practice in the workplace has an "adverse impact" on older workers.
That includes layoffs that seem to target higher-salaried employees or those soon eligible for retirement benefits. Or an employment test that measures computer skills — something older workers tend to have less of — when the position at hand doesn't require using a computer.
It's an important decision because, with 75.8 million Americans now 40 and older, more than half of the nation's workforce is affected.
The court's ruling stems from a case in which older police officers in Jackson, Miss., sued the city after the police department began giving larger pay raises to younger officers who had less experience. The senior officers didn't prove that the city intended to discriminate against them. There was no "smoking gun" — no memo, e-mail or statements from city officials — showing that the city wanted to harm older officers. But, the officers argued, that was the logical consequence of the policy.
The city insisted that it meant no offense. It claimed that the policy was necessary to make salaries more competitive and make it easier to recruit new officers.
In the end, the Supreme Court delivered an opinion loaded with nuance. It bought into the city's argument that the two-tiered policy for pay raises was a "business necessity" that should be preserved. And so the court dismissed the case brought by the senior officers.
But, in what legal experts say is the more important part of the decision, the court also made clear that under the Age Discrimination in Employment Act of 1967 — which bars employers from hiring and firing people based on age — workers could sue employers even if they couldn't prove an intent to discriminate. Under the new standard, it is sufficient to show that a given policy has a disparate impact on older workers.
This is new ground because, for more than a generation, the courts have held that showing disparate impact was not enough to sue under ADEA and that older workers had to prove intent in order to file a claim. As a result, lawsuits alleging age discrimination have been tough to litigate and even tougher to win. In fact, the conventional wisdom is that a lot of these cases never even get filed because the intent requirement makes them so difficult to try.
It may also be that people don't think to complain about age discrimination as readily as they do other types of alleged mistreatment. According to the Equal Employment Opportunity Commission, the government agency that investigates discrimination claims, allegations of age discrimination formed the basis of 22.5 percent of complaints received by the agency. Thirty-five percent had to do with race, and 30 percent involved gender.
Of course, it also didn't help that the legal system has had a curious double standard with regard to different types of discrimination. In cases that involve race, gender or religion, plaintiffs have — since the 1970s — had to demonstrate only that a given policy in the workplace had a "disparate impact" in order to file a lawsuit. But that wasn't the case with claims of age discrimination, at least not until last week's decision.
According to Vincent Blackwood, assistant general counsel for the EEOC, the problem may be that judges have been more skeptical of age-based claims. Or maybe the problem is with the rest of society and what we're willing to tolerate.
"It may be that there is this sense that age discrimination is less morally repugnant than discrimination based on race or gender," Blackwood said.
If Americans ever believed that — even for a second — then shame on us. Even as a 37-year-old who is not affected by this ruling, I have to say we couldn't have been more wrong. And thank goodness, the Supreme Court reminded us of what is right.
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Arnold Ahlert | |||||||||||
