Justices to clarify rights of older workers

Posted: Tuesday, December 04, 2001

WASHINGTON -- With layoffs expected at many firms hit by recession, the Supreme Court said Monday it will decide if older workers may sue over cutbacks that seem to hit them hardest.

The court will review claims by fired utility workers in Florida, who claim that more than 70 percent of those laid off during company reorganizations in the early 1990s were age 40 or older.

A ruling against the workers would mean that to win future age bias cases, elderly workers would have to prove that employers intended to discriminate. That is often a harder case to make than the one at issue in the Florida lawsuit, which claims that layoffs that seem to be evenhanded on their face really fell disproportionately on older workers.

''It comes at a crucial point because of the economic downturn,'' said Laurie McCann, a lawyer with the lobbying group AARP. ''When it's time to cut costs, the ax always falls on older workers because employers, whether it be true or not, perceive that they cost more.''

American companies announced 1.2 million layoffs between January and August, exceeding the total for all of 2000 by 83 percent. It is not yet clear how many older workers will lose their jobs.

Although unemployment rates for those 45 and older is just over 3 percent -- lower than the more than 5 percent national rate -- the AARP says the figures may not reflect discouraged older workers who would work if they could, but choose to retire rather than pound the pavement fruitlessly.

The number of unemployed workers ages 45 to 64 jumped 23.5 percent to 1,478,000 in August 2001 when compared to the same period a year earlier. The number of jobless workers ages 25 to 44 rose at a slower 20.1 percent.

The question for the Supreme Court is whether a 1967 law barring on-the-job age discrimination allows people to sue under the premise that an employer's action had a ''disparate impact'' on older workers.

Hundreds of such suits are filed each year, claiming discrimination in hiring, pay, benefits, promotion and firing. The number would be far greater, but a majority of the federal appeals courts have ruled that the Age Discrimination in Employment Act does not allow them. The Supreme Court ruling will resolve the split among the lower courts.

''It's very common, particularly in a reduction of force situation where several groups of people are affected,'' said Eugene Ulterino, a partner at Nixon Peabody LLP who represents companies sued for age bias.

The 1967 law covers about 70 million workers age 40 or older, representing about 48 percent of the work force. The law makes it illegal to treat older workers differently solely based on age, and allows workers to collect back pay, benefits and other remedies if they win a discrimination claim.

The case the court accepted Monday involves a class-action lawsuit filed by more than 100 former Florida Power Corp. employees who claim they were fired because the company wanted to change its image and reduce its costs for salaries and pensions.

Wanda Adams and other former workers sued in 1999, but their claims never reached trial. A federal court said it needed clarification on whether the former employees could bring such a suit.

The 11th U.S. Circuit Court of Appeals ruled earlier this year that the age discrimination law did not provide for this kind of suit, which has been common for people alleging discrimination in housing or employment based on sex or race.

In April, the Supreme Court limited similar lawsuits under the landmark 1964 Civil Rights Act. In writing that law, Congress did not grant the right to claim that state policies had an unfair, discriminatory effect on minorities, the court said.

It is a given that people have the right to sue over alleged intentional, state-sponsored discrimination, Justice Antonin Scalia wrote for the majority in that 5-4 decision. What they do not have the right to do, Scalia said, is challenge state decisions such as Alabama's policy of offering driver's tests only in English on the theory that such requirements affect minorities more than other applicants.

The case is Adams v. Florida Power Corp., 01-584.

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On the Net:

Supreme Court site: http://www.supremecourtus.gov

AARP: http://www.aarp.org



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