- The Washington Times - Thursday, March 31, 2005

The Supreme Court yesterday upheld protections for workers more than 40 years old, ruling employers can be held liable for enacting policies favorable to younger employees — even if the discrimination was unintentional.

The 5-3 ruling affirmed the reach of the Age Discrimination in Employment Act of 1967 (ADEA), but in an unexpected twist, the high court dismissed the case that brought the issue before it and said that businesses will be protected if they have “reasonable” policies.

The suit involved 30 Jackson, Miss., police officers and dispatchers over 40, who claimed they were “deliberately discriminated against” by a 1999 city policy to give bigger raises to younger employees.

In the majority opinion by Justice John Paul Stevens, the court said the older employees failed to make a convincing case because they had not “identified any specific test, requirement or practice within the pay plan that has an adverse impact on older workers.”

It also said the city’s pay plan, which was designed to retain officers by matching salaries of surrounding areas, showed it was a “decision based on a ‘reasonable factor other than age.’”

The other justices in the majority were Antonin Scalia, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justices Sandra Day O’Connor, Anthony M. Kennedy and Clarence Thomas disagreed. Chief Justice William H. Rehnquist did not participate because he was ill when the case was argued.

The ruling centered on the question of whether the ADEA allows older employees to seek monetary damages based on “disparate-impact” claims — claims rooted in arguments that employers gave harmful differential treatment to employees.

Two lower federal courts had held that such claims, which are allowed in gender- and race-discrimination cases, were “categorically unavailable” under the ADEA. But the Supreme Court, which never had addressed the question during the 38-year history of the law, disagreed.

The justices said the ADEA authorizes such claims in cases comparable to a 1971 race-discrimination case in which a power company was in violation of the 1964 Civil Rights Act for using standardized tests to prevent black employees from being hired or advancing.

The ADEA, the justices said, is “identical” to the portion of the Civil Rights Act used in that case, “except for the substitution of ‘age’ for ‘race, color, religion, sex, or national origin.’”

But they noted the age-discrimination law still offers a narrower scope for lawsuits because, unlike the civil rights law, it allows employers to enact what may be considered discriminatory policies as long as the policies are based on “reasonable factors other than age.”

About 18,000 age-discrimination claims were filed last year with the Equal Employment Opportunity Commission. Nearly 16,000 were resolved, with $60 million going to victims and other aggrieved individuals.

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