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Jewish World Review March 31, 2002 / 18 Nisan, 5762

Sean Carter

Sean Carter
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Consumer Reports

Seniors are "disparately" seeking equal justice -- Someone once said, "as we get older, work seems a lot less fun and fun seems a lot more work." Obviously, this person had a much better job than I have, because I'm only 34 years old and work isn't all that fun now. I'd hate to think that it gets worse with time.

Unfortunately, it does. Unlike our Japanese and German counterparts, American workers live in constant fear of the "L" word - labor. However, elderly workers also live in fear of another "L"- word, layoffs, as many companies look to replace seasoned employees with younger workers.

There was once a time in the American workplace when loyalty was rewarded. But those days are as long gone as the beehive hairdo, the poodle skirt and Ricky Martin's career.

Today, many companies are handing out pink slips faster than a commissioned saleslady at Victoria's Secret. By "young sizing," firms have found they can greatly reduce labor costs by hiring new employees, who will often work for less pay. Then there's the savings on health care premiums and pension costs.

Not that that this strategy doesn't have hidden costs, such as low employee morale, high employee turnover and, of course, litigation. In fact, one company, Florida Power Corp., recently found itself before the U.S. Supreme Court defending itself against an age discrimination class action.

Under the Age Discrimination in Employment Act, or ADEA, employers are prohibited from discriminating against employees on the basis of their age. In 1996, a group of more than 100 former workers of Florida Power claimed that they had been laid off to make way for younger (and cheaper) employees.

In making this claim, the workers did not specifically allege that any of them were fired for being too old. Instead, they pointed out that more than 70% of the people laid off were 40 or older. In short, they claimed that Florida Power's layoff scheme had a "disparate impact" on older workers and was therefore, in violation of ADEA.

In 1999, the federal district judge presiding over the case ruled that disparate impact claims are not allowed under the ADEA. Instead, citizens claiming violations of ADEA must specifically prove that they were fired because of their age. In 2001, an appellate court agreed with this ruling.

Interestingly, not all appellate courts have ruled this way. In other districts, courts have ruled that age discrimination suits can be brought on the basis of disparate impact, just as racial discrimination actions can be brought on this basis. In short, the consensus of opinion on this issue couldn't be more fractured if Delta Burke fell on it.

In an effort to clear up some of the confusion, the U.S. Supreme Court recently heard oral arguments in the case. In the coming months, the high court will decide whether plaintiffs claiming age discrimination can use the disparate impact analysis to prove discrimination.

Disparate impact claims were first brought in racial discrimination suits under Title VII of the Civil Rights Act of 1964. In these cases, minorities often found it difficult to prove discriminatory intent. After all, even the President of David Duke Enterprises wouldn't be stupid enough to say, "Hey, Leroy, you're fired! Why? Because you're black!"

Instead, he would come up with an "objective" standard for hiring, firing and promoting employees. For instance, in this case, he would simply require that all employees must be (1) members of the Klan, (2) married to their third cousins and (3) toothless. Not coincidentally, under these standards, few of the people hired or promoted would be minorities (or people with IQs over 40).

In a landmark 1971 decision, the Supreme Court ruled that Title VII plaintiffs could make their case by proving that an employer's policy has a disparate impact based on race, national origin or religion. However, this ruling was restricted to Title VII claims and did not apply to claims of discrimination based on other factors, such as sex, age or favorite football team.

When first learning of this distinction in law school, I had several questions -- "How can there be one standard of proof in some discrimination cases and another standard of proof in others? Aren't all forms of illegal discrimination equally wrong? How many banks will I have to rob to pay back these school loans?

Besides, disparate impact doesn't automatically spell victory for the plaintiff. Even if a disparate impact is demonstrated, then the employer can still win by showing that its policy has a business justification.

For instance, let's suppose that a trucking company only allows its long distance truckers to stop for bathroom breaks every four hours. Obviously, this policy would have a disparate impact on senior citizens, many of whom need to stop for bathroom breaks every four minutes.

Nevertheless, the trucking company would be justified in this case because its business would suffer tremendously if it took 45 days to deliver cargo across the country. On second thought, perhaps that explains my last UPS shipment.

Therefore, in the case before the court, even if disparate impact is demonstrated, Florida Power could easily prove that it had a business justification for its layoff policy. However, if the court rules as it has in the past, this won't be necessary.

Notwithstanding the fact that most of the justices are senior citizens themselves, they usually are not very sympathetic to the "chronologically challenged" in employment cases. Of course, their lifetime appointments to the court probably make it difficult to relate to the 65-year old janitor who was just replaced by a 6-year old.

On second thought, considering the grave nature of this terror, perhaps we shouldn't be so hard on them. Therefore, no matter how the court rules on this issue, I am going to support its decision. After all, you shouldn't criticize someone until you've walked a mile in their orthopedic shoes, right?

Sean Carter is a practicing attorney, stand-up comedian and humor writer. Comment by clicking here.


03/08/02: More than a day late, but definitely not a dollar short
02/12/02: Beam me up, your honor!
01/25/02: Until irreconcilable differences do us part
12/17/01: Teachers go to the pokey for playing hooky
11/16/01: When baseball fans attack ...
11/02/01: Pop-torts
09/04/01: Can't beat the competition? Sue, baby, sue!

© 2002, Sean Carter