Court widens older workers' rights at jobs

WASHINGTON -- When the Supreme Court tackles issues relating to age, it speaks with considerable firsthand knowledge.

Justice John Paul Stevens, at 84 the court's oldest member, wrote Wednesday's decision making it easier for workers 40 and over to file age discrimination lawsuits. A conflicting minority opinion was offered by 75-year-old Justice Sandra Day O'Connor.

While they differed on what the law should allow, they agreed that employers may make decisions that treat older workers differently.

In a 5-3 decision, the court expanded job protections for roughly half the nation's work force, ruling that federal law allows people 40 and over to file age bias claims over salary and hiring even if employers never intended any harm.

The decision eases the legal threshold for about 75 million middle-aged and older people to contend in court that a policy has a disproportionately hurtful effect on them. On the other hand, the ruling makes clear employers still will prevail if they can cite a reasonable explanation for their policies, such as cost-cutting.

"Age ... not uncommonly has relevance to an individual's capacity to engage in certain types of employment," Stevens wrote for the majority.

The decision was applauded by advocates for older workers but criticized by business and municipal groups, which say it will create costly additional litigation.

The case was brought by older police officers in Jackson, Miss., who contended a city policy favored younger colleagues. The court unanimously rejected their appeal but in a 5-3 vote ruled they were entitled to pursue the lawsuit.

Chief Justice William H. Rehnquist, 80, did not participate in the decision, which was heard in November when he was being treated for thyroid cancer.

Citing the 1967 Age Discrimination in Employment Act, Stevens said it was meant to allow the same type of legal challenges for older workers that minorities and women can make under the 1964 Civil Rights Act. But he also said the same law stipulates employers are within their rights to treat older workers differently.

He was joined by other members of the court's liberal wing -- David H. Souter, 65, Ruth Bader Ginsburg, 72, and Stephen G. Breyer, 66.

Justice Antonin Scalia, 69, filed a separate opinion, saying "disparate impact" claims alleging a hurtful effect are acceptable based on the Equal Employment Opportunity Commission's interpretation of the congressional statute, not the majority opinion's "independent determination" of the law.

O'Connor and two others disagreed, saying the age discrimination act bars the impact claims. She said Congress never intended such lawsuits because employers should have flexibility to make business decisions that might unintentionally harm older workers.

"There often is a correlation between an individual's age and her ability to perform her job," O'Connor wrote. "That is to be expected, for physical ability generally declines with age, and in some cases, so does mental capacity."

She was joined by Anthony Kennedy, 68, and Clarence Thomas, 56.

"This is a major boost for the fight to eliminate age discrimination in the workplace. Evidence that an employer is intentionally out to get older workers is very hard to come by," said Laurie McCann, senior attorney for AARP, the advocacy group for people 50 and over.

"It is a significant win for older workers who lack smoking gun evidence of age discrimination," said Thomas Goldstein, a Washington lawyer who represented the police officers. "It also reminds employers to be conscious of the effects of their policies."

But David Parkhurst, attorney for the National League of Cities, called the ruling a disappointment for cash-strapped governments as they seek ways to legitimately cut costs.

Potential budget savings could be lost, he said, "if cities have to extend more time and money for litigation costs."

In the Mississippi case, 30 Jackson officers and dispatchers sued over a pay performance plan they said gave substantially larger pay raises to employees with five or fewer years of tenure -- a plan they said would as a result have an unfavorable impact on employees 40 and over.

Lower courts threw out the lawsuit, reasoning that impact claims were barred.

In its ruling, the Supreme Court said that while police officers can get into court to prove unfavorable impact, they failed to do so here. The city's explanation that it was trying to make salaries for junior officers more competitive with similar positions was reasonable, the court said.

Employers defending themselves from lawsuits charging sex or race discrimination under Title VII of the 1964 Civil Rights Acts have a tougher standard of showing "business necessity" rather than "reasonableness" to prevail at trial.

"The city's decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a 'reasonable factor other than age' that responded to the city's legitimate goal of retaining police officers," Stevens wrote.

The case is Smith v. City of Jackson, 03-1160.

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On the Net:

The opinion in Smith v. City of Jackson is available at:

http://wid.ap.org/documents/scotus/050330smith.pdf