- The Washington Times - Wednesday, November 12, 2003


Supreme Court justices with an average age of nearly 70 wrangled yesterday over whether workers in their 40s can sue employers for offering better benefits to older colleagues, a type of reverse age discrimination.

It already is clear that people older than 40 can sue under a federal age-discrimination law when younger colleagues get preferential treatment because of age. Justices will resolve before next summer whether workers older than 40 can sue when older employees get better treatment such as cheaper health care or choice work hours.

Some justices joked about their own senior-citizen status, but then more seriously focused on company efforts to help older workers stay on the job longer. Many seemed skeptical of allowing the reverse-discrimination lawsuits.

Justice Antonin Scalia warned that if the midcareer workers win in this appeal, a law “meant to aid older workers … ends up harming them, a very strange consequence of this legislation.”

About 200 General Dynamics Corp. workers in Ohio and Pennsylvania brought the case, claiming they were discriminated against because they were too young to get benefits being offered to older colleagues.

An appeals court ruled that they could sue under the 1967 Age Discrimination in Employment Act. About 70 million U.S. workers, about half of the nation’s work force, are at least 40.

At the heart of the case is a human question, Justice Stephen Breyer said: whether companies can cut some slack to employees close to retirement age without illegally discriminating against 40-something employees.

The Bush administration is backing the suing workers. Government lawyer Paul Clement said that the law is “crystal clear” in protecting people older than 40 from discrimination. He said innocent-sounding accommodations for older workers can promote stereotypes that the law is designed to stop.

Falls Church-based General Dynamics was sued when it changed its retirement benefits in 1997. Until then, longtime company employees could retire and receive full health benefits. Under the new union contract at General Dynamics Land Systems plants in Lima, Ohio, and Scranton, Pa., only longtime workers 50 or older as of 1997 could receive full health benefits after retirement.

General Dynamics, which makes battle tanks and combat vehicles for the military, is supported in the case by unions, business groups and the AARP, the advocacy group for people 50 and older. Company lawyer Donald Verrilli Jr. told justices that “people at the end of their working lives are at a different position” and companies should be allowed to help them.

Mark Biggerman, the lawyer for the workers who brought the case, said companies cannot single out gray-haired workers for better treatment than those with less gray hair. That prompted the dark-haired Mr. Scalia, 67, to joke that senior citizens do not necessarily have gray hair.

Also yesterday, the court ruled unanimously that the federal government does not owe financial subsidies to people whose physical or mental disabilities allow them to do only jobs that no longer exist.

The court said the Social Security Administration had the authority to deny the claim of a disabled former elevator operator who applied for disability payments after her employer installed new elevators and eliminated her job in 1995.

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