Justices to rule on age discrimination Supreme Court to decide if a 40-year-old is young


WASHINGTON -- Federal law protects a worker from being fired or denied promotion in favor of a younger worker when age was the reason. But it is up to the Supreme Court to say -- and it agreed yesterday to do so -- how young is young.

At issue in a North Carolina case is a lower court's ruling that an older worker cannot prove illegal age bias under federal law if that worker's job or promotion has been lost to a co-worker who is 40 or older.

Only if the replacement is under 40 does it count, legally, according to the 4th U.S. Circuit Court of Appeals in Richmond, Va. -- the federal appeals court that includes Maryland and neighboring states. Anyone older than 39, the appeals court noted, is also protected by federal law and thus can legally bump an older worker.

The case involves a 56-year-old Charlotte man, James O'Connor, who was fired from his job as a regional manager for a cafeteria and vending-machine company after it reorganized. In his place, the company named 40-year-old Ted Finnell.

Mr. O'Connor, claiming he was a victim of illegal discrimination based on age, not only cited his replacement by the younger man but also challenged comments by his boss that he was "too damn old for this kind of work" and that the company needed "some young blood." The appeals court rejected both challenges.

In his appeal to the Supreme Court, Mr. O'Connor complained not only about the over-39 line drawn by the appeals court, but also about the lower court's refusal to find age bias in the supervisor's comments. The high court agreed to consider only the over-39 issue.

The federal Age Discrimination in Employment Act generally protects workers age 40 or older from job discrimination based on their age. A worker who complains of age bias must prove that age was the reason. He or she must also disprove any claim by management that it had a valid reason for what it did -- such as a claim that the replaced worker was unable to perform the job.

One way to prove that age was the reason is by showing that, after the older worker lost out, the job or the promotion went to a younger worker. Mr. O'Connor had asked the Supreme Court to rule that, no matter what age the younger worker is, the difference in age should be enough to show bias.

His former employer, Consolidated Coin Caterers Corp. of Raleigh, a division of Canteen Corp., supports the appeals court decision that the law is triggered only when the younger worker is under 40.

A ruling by the Supreme Court is expected by early next summer.

In a second job-discrimination case, the court refused to spell out what kind of derogatory comments about a co-worker's sex are enough to violate the federal law against sexual harassment on the job.

The 5th U.S. Court of Appeals in New Orleans ruled that civil rights law does not outlaw workplace comments about female co-workers if the remarks only "sporadically wound or offend" the women.

Remarks aimed at women, the lower court said, must be "extremely insensitive" so as to "hinder a female employee's performance" at work.

That standard was not met, it concluded, by a series of remarks made by an anonymous columnist in an El Paso, Texas, police union newspaper against women on the police force in general, and against a female sergeant in particular.

Sylvia DeAngelis, the first female officer to be promoted to sergeant on the El Paso force, was referred to as "Sergeant Dingy Woman" -- apparently a takeoff on "dingbat." The columnist also ridiculed the idea of having a "110-pound female back you up" in a tense police situation.

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