Justices weigh age bias lawsuits

The Baltimore Sun

WASHINGTON -- It is not necessarily unlawful for an employer to adopt policies that put older workers at a disadvantage. Such policies pass muster under the Age Discrimination in Employment Act as long as they are based on "reasonable factors other than age."

The question in a Supreme Court argument yesterday was whether the employer has to prove that such "reasonable factors" exist, or whether it is up to the employee who has brought a lawsuit to show that they do not.

The burden of proof makes a substantial difference in any lawsuit, although statutes rarely specify which side bears it. For federal laws against race and sex discrimination in the workplace, the Supreme Court has filled the gap by developing fairly elaborate procedures that plaintiffs and defendants must follow. But for age discrimination, the rules have remained murky, leaving the lower courts in confusion over how to handle this growing category of workplace discrimination claims.

The argument the justices heard yesterday was in a case brought by two dozen workers at a federal research laboratory in upstate New York. Carrying out a reduction in force, the employer, Knolls Atomic Power Laboratory, which is owned by the Lockheed Martin Corp., terminated 31 employees after using a set of guidelines to evaluate workers' skills and amenability to retraining. All but one of the dismissed employees were over 40, the age at which the protections of the federal age discrimination law begin to apply.

Most of the affected employees joined a lawsuit arguing that there was no justification for using an evaluation system that had such a starkly disparate impact on older workers, and that the procedure consequently violated the federal law. The plaintiffs won in a jury trial. But the judgment was overturned by the U.S. 2nd Circuit Court of Appeals, in New York, which held that plaintiffs in such a case had the burden of showing that the policy they were challenging was unreasonable.

In the Supreme Court, the Bush administration supported the employees' appeal, Meacham v. Knolls Atomic Power Laboratory. Daryl Joseffer, an assistant to the solicitor general, told the justices that the inclusion in the statute of "reasonable factors other than age" as an exception to liability showed that Congress was offering employers a defense, the existence of which they would have to prove.

"But even if the text wasn't so clear, one would logically put it on the employer," Joseffer continued. "All else being equal, the employer is in a better position to explain the reasonableness of its very own business practice."

The employees' lawyer, Kevin K. Russell, made a similar point, and was met with resistance from Justice Anthony M. Kennedy and Chief Justice John G. Roberts Jr.

"That doesn't seem a very compelling case," the chief justice said, because in pretrial discovery, employees' lawyers could question company officials about their rationale. "It doesn't seem to me that the fact that the employer possesses the information, given the very liberal discovery we have, is much of a factor," he said.

The employer's lawyer, Seth P. Waxman, said the court should keep in mind the difference between age discrimination and other kinds of workplace discrimination. Policies that have a differential impact on the basis of race or sex can rarely be justified, he said, while age, on the other hand, "often does correlate with reasonable employment factors."

Consequently, Waxman continued, "the presumption actually is quite weak" that a challenged policy amounts to improper age discrimination, and it made sense for plaintiffs to have to prove there was no legitimate justification.

The justice most skeptical of Waxman's argument was Justice Ruth Bader Ginsburg, who questioned him closely on his legal theory and the facts of the case.

The argument in this case was the final one of the court's current term. From now until late June, the justices will spend their time deciding the remaining cases they have heard and selecting new appeals to hear in the next term.

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