Leveling the Playing Field for Older Workers

EDITORIAL

Protecting the Work Force
Published: April 1, 2005

Read the entire article at: http://www.nytimes.com/2005/04/01/opinion/01fri3.html?th&emc=th


Summary:

The Supreme Court struck an important blow for older workers this week by making it easier for them to sue for age discrimination.

The ruling, which allows older workers to use the same kind of proof as victims of race or sex discrimination, corrects numerous bad rulings by lower courts.

Now that the law has changed for the better, employers should be far more careful about how they treat older workers.

The Age Discrimination in Employment Act bars discrimination against workers over the age of 40.

But courts have blunted the law's impact by interpreting it in an unduly narrow way.

When women, blacks and members of other groups sue under Title VII of the Civil Rights Act of 1964, they do not need to prove intentional discrimination.

They can show "disparate impact," which means that their group was disproportionately harmed by an employer's policy or behavior.

Even though the age law has nearly identical language, many courts have refused to allow older workers to bring disparate-impact claims.

This misreading of the statute was part of a larger, and shameful, hostility by the courts to suits by older workers.

In case after case, judges have refused to recognize intentional discrimination, which was illegal even before this week's ruling, despite clear evidence.

In one notable instance, a 56-year-old worker was fired by a North Carolina company two weeks after a supervisor told him, "O'Connor, you are too damn old for this kind of work."
A federal appeals court ruled that the worker had not proved his case.

The Supreme Court has now given older workers the protection Congress intended by allowing them to sue based on disparate impact.

This week's ruling still leaves employers a significant way out because it allows them to prevail if they can show that they acted based on "reasonable factors other than age."

But wise in-house lawyers will be warning their companies in the days ahead to re-evaluate their treatment of older workers in things like promotions and layoffs.

Workers over the age of 40, who are nearly half of the work force, deserve to be treated fairly.
But they are not the only ones who are likely to benefit.

Older people are often the most competent and conscientious workers, but employers may be too ignorant or biased to realize it.

As the United States is thrust into an ever more competitive global economy, it cannot afford to let prejudice prevent it from having the best possible work force.

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