- The Washington Times - Wednesday, November 3, 2004

ASSOCIATED PRESS

The Supreme Court debated yesterday how much protection from job bias older workers are entitled to, a case that could set new standards for on-the-job age-discrimination lawsuits.

Justices are reviewing a case involving Jackson, Miss., police officers who sued the city when their younger colleagues got more generous pay raises.

Glen Nager, the attorney for the city government, noted the aging members of the Supreme Court and said it is “painful” to acknowledge that older workers have different mental and physical abilities. Employers, he said, make many age-related business decisions and should not be threatened constantly with lawsuits.

The court is considering a 1967 anti-discrimination law that covers about 75 million workers who are 40 and older — or about half the work force. Employees can use the law to win back pay, benefits and other compensation if they can prove that their employers discriminated against them because of their age.

The Mississippi case asks the high court to allow lawsuits when job policies that appear neutral actually have a disproportionately harsh effect on older workers. Some lower courts allow so-called disparate-impact claims under the 1967 law. Others don’t.

The court already has said such lawsuits are allowed in sex- and race-discrimination cases.

Justice Antonin Scalia said Congress used the same language in the 1967 law as it did in the 1964 Civil Rights Act, which bans discrimination based on a worker’s sex, religion or race.

“It seems to me they wanted the two to mean the same,” Justice Scalia said.

Justice Sandra Day O’Connor questioned how many disparate-impact age-discrimination cases would be filed, if the court allows them.

Thomas Goldstein, the attorney for the police officers, said he did not expect an overwhelming number.

“If the court rules against the older workers, it could be sending a real signal that age discrimination is not as serious or wrong as other kinds of discrimination,” said Laurie McCann, a lawyer for the older Americans group AARP.

Miss McCann said complaints of discrimination against older workers are increasing because employers “see them as the most dispensable” in corporate cost-cutting.

Business groups and government associations are backing the city of Jackson in the case.

“Many essential work-force practices have some correlation with age,” justices were told in a filing by associations of state government and city leaders. “Judicial sanctioning of disparate-impact claims has unduly restricted the ability of government employers to manage their work forces and provide cost-effective public services.”

In the case, 30 officers and police dispatchers sued over a pay plan intended to help the Jackson police department attract more new officers. The largest raises went to newer officers. The more senior officers lost their case in a lower court and appealed to the Supreme Court.

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