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Retirement Living

Date Added: 05-04-2005

SAN FRANCISCO -- Age discrimination in the workplace may be easier to fight thanks to a U.S. Supreme Court decision last week, but the ruling isn't likely to impel a slew of older Americans to file lawsuits.

In part, that's because the decision doesn't affect the discrimination older workers most often face, such as disparaging remarks about age or being summarily fired after 30 years on the job.

Those types of claims are called "disparate treatment" claims and they're based on the idea that a manager or boss is treating an older worker differently because of his or her age.

The Supreme Court decision doesn't touch on those cases but on situations where a company policy affects older workers or job seekers differently than it does younger workers, such as a mass layoff or a hiring policy.

Victims in such cases no longer need to prove the company intended harm, just that the policy did harm -- or, in legalese, had a "disparate impact" on -- a group of older workers.

The ruling means some age-discrimination claims can now be argued the way sex and race claims are under Title VII of the Civil Rights Act, which also doesn't require proof of intent. Age-bias claims fall under the Age Discrimination in Employment Act of 1967, which covers workers 40 and older.

"The good thing is that any time (employers) craft a policy, they're going to have to take a look at it and make sure it doesn't have a disparate impact on older workers," said Laurie McCann, a senior attorney with AARP.

"That's a good thing ... they're going to have to review all their policies and practices and see if they have a statistical impact on older workers. They're already doing that for race and gender," she said.

Still, "I don't think there are going to be tons and tons of disparate impact cases brought," McCann said.

In age-bias claims "the typical case is an individual termination, an individual case," she said. "It's the nature of the workplace [that] it's more common for a single individual to be targeted because of their age than for an entire work force to be targeted, or a smaller group."

Hiring, layoff policies affected

The good news for older Americans is they will have an easier time winning some cases that were nearly impossible to win in the past.

Say a case involves a school district's hiring policy, where the district tries to save money by not hiring anyone with more than 15 years' experience.

Before the recent ruling, job seekers filing a lawsuit "would have had to prove that the employer crafted that policy because they wanted to screen out older workers," McCann said.

"That proof of intent is very hard to come by even if it was there," she said. "You'd be very lucky if in discovery you found the memo or something that said that was their intent."

Now age-bias claims simply have to prove the policy has an adverse impact on older workers, whether or not the employer intended it.

A big out for employers

Still, while the court gave older workers a tool for fighting age bias, it also made it difficult to wield: Companies only need prove "reasonable" business factors as a basis for their policy, even if it does have a disparate impact.

In fact, the Supreme Court ruled against the plaintiffs in the case, a group of police officers from Jackson, Miss., who said younger workers benefited from bigger pay hikes (on a percentage basis).

The court said the employer's argument that it needed those larger salary hikes to attract new recruits was a reasonable business decision.

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