- The Washington Times - Monday, December 8, 2003


The Supreme Court yesterday didn’t take an opportunity to decide whether older people can sue over job layoffs that seem to hit them hardest, a major age discrimination case that came to the court after three tough years of company cutbacks.

Justices have been looking for the right case to resolve the standard for age discrimination suits.

A 1967 law bars on-the-job age bias, but the court has never said whether the law allows suits on grounds that an employer’s action had a “disproportionate impact” on older workers. The law covers about 70 million workers age 40 or older, or nearly half of the work force.

In 2002, justices scuttled one attempt to settle the question, in a challenge by fired utility workers in Florida.

The court yesterday refused to hear the appeal of a former Electronic Data Systems Corp. employee from Alabama who contended that the company targeted people over age 40 for layoffs. The justices did not explain their rationale.

EDS, which is based in the Dallas suburbs, had argued that this case was a bad one for the court to review, because Jack Thweatt Jr. did not give specific enough information about perceived discrimination.

Mr. Thweatt’s attorneys argued that the company gave lower performance rankings to older employees, so they would be up first for layoffs.

At issue is whether older workers have to prove that employers intended to discriminate. That is often a harder case to make than contentions that layoffs that appear evenhanded on their face disproportionately hurt older workers in reality.

EDS attorney Martin Wymer of Cleveland said that if impact cases are allowed, companies would struggle to defend themselves. “With creative statisticians, just about anyone could make some sort of showing of a statistical disparity,” he said yesterday.

Some federal appeals courts have allowed that type of age bias lawsuit, but many others have not.

“Until the [Supreme] Court settles this, employees’ rights depend entirely on where they live,” said Mr. Thweatt’s attorney, John Crabtree of Key Biscayne, Fla.

EDS slashed thousands of jobs over the past three years as the market for computer services slumped.

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