Effects of age ruling unclear

Burden of proof high for potential litigants
By KARIN RIVES, Staff Writer
Published: Apr 1, 2005Modified: Apr 2, 2005 4:40 AM

Read the entire story at: http://www.newsobserver.com/business/story/2269742p-8648813c.html

Summary:

Look for more lawsuits in an already litigious society after Wednesday's Supreme Court decision on age bias.

But even as workers 40 and older have more opportunities to sue their employers for policies that discriminate against older workers, the ruling is likely to have little impact on companies in the Triangle and beyond, employers and attorneys said Thursday.

"The employee is better off than before, but not as well off as those who bring sex, race or national origin cases," said John Campion, a Raleigh employment attorney.

"So it's a bit of a compromised decision."

That's because the Supreme Court justices raised the burden of proof for age-bias claims, he said.

That undermines some of the clout of nearly 76 million workers who now have the right to sue even if their employers never intentionally discriminated against them.

As long as employers document the business or financial reasons for laying people off, for example, they will be protected even if a disproportionate number of those who lose their jobs are older, local attorneys said Thursday.

That helps explain why human resource officials at Progress Energy took the Supreme Court ruling in stride, even as the Raleigh-based utility prepares for a major reduction of its work force.

"We've always had a very rigorous review to make sure our staffing process is handled in a fair and unbiased manner," said Progress Energy spokesman Keith Poston.

"So we really don't believe the Supreme Court decision will have an impact on what we're doing today."

Other major Triangle employers such as WakeMed and Glaxo-SmithKline expressed the same confidence.

Companies that offer severance pay to laid-off workers will also remain insulated from legal claims because most employees waive their right to sue in order to receive the benefit.

There are other aspects of the court's ruling that will make age- bias claims tough to win.

Because more than half of all U.S. workers are covered by the age discrimination law, an employer could have policies that benefit one group in the age group at the expense of another.

That makes age bias cases radically different from sex and race discrimination cases, and much harder to prove.

The financial services company George Beatty worked for in 2001 went out of its way not to discriminate against older workers.

When New York-based Prudential Securities began to slash jobs before it merged with Wachovia Securities in 2003, it offered early retirement packages and other options to people in their mid-50s to avoid any appearance of age bias, he said.

"They were very cautious, and there seemed to be a lot of provisions for the folks who were older," he recalled.

Beatty, then 46, wasn't granted such special protection.

Today he's working for 40 percent of his former salary as an information technology supervisor.

Was Beatty, at least in theory, discriminated against because he was older than 40 and not receiving the same benefits some of the older workers got?

"What you're measuring against is not really clear," said Tom Farr, a Raleigh-based partner with Ogletree Deakins, a national law firm representing management in labor and employment cases.

That's the issue that will have to be litigated and sorted out."

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