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Court tackles age bias case

The U.S. Supreme Court wrestled Wednesday with the question of whether older workers can allege discrimination as easily as workers claiming racial or sexual bias.

At issue is whether the 1967 Age Discrimination in Employment Act _ which prohibits discrimination against workers older than 40 _ allows lawsuits to be brought against companies based on the impact, rather than the intent, of company employment policies. The act covers about 70-million workers, nearly half the work force.

John G. Crabtree, attorney for 117 Florida Power Corp. employees fired during the company's reorganization efforts in the mid-1990s, argued Wednesday that it was enough for the workers to show that the company's reduction in force had a disproportionate impact on older workers. More than 70 percent of those dismissed were 40 or older.

Advocates for the elderly say such suits should be allowed because similar cases alleging "disparate impact" of employment policies are allowed under the 1964 Civil Rights Act.

But Glen D. Nager, representing Florida Power, argued that the workers had to show that the company had a motive to fire older workers and retain younger workers. Merely showing that older workers were fired at a disproportionately higher rate than younger workers is not enough, Nager said. The workers must show they were treated differently to claim bias.

Advocates for business also argue that there is a difference between older workers, who may not be able to keep up with changing skill requirements, and racial minorities or women.

The Supreme Court's nine justices _ all of whom are over 40 and hold lifetime appointments _ focused on different aspects of the case during the hourlong arguments.

Justices John Paul Stevens and Ruth Bader Ginsburg said they were troubled that there was not a specific policy or employment practice, other than reducing staff size, that might have had a disparate impact on the older Florida Power employees. Justice Sandra Day O'Connor focused on whether there was a difference between the age discrimination law and other laws prohibiting discrimination based on race or sex.

Crabtree argued that the statutes were similarly worded and that disparate impact should be allowed as a basis for bringing age discrimination suits. But Nager argued that age discrimination is different from racial and sexual discrimination and that Congress recognized those differences when it wrote the law.

Federal appellate courts who have heard age discrimination cases have split three-three on the question of whether workers can use the disparate impact theory to claim discrimination.

In the case heard Wednesday, a district court judge in Tampa and a three-judge panel of the 11th Circuit Court of Appeals in Atlanta ruled that the disparate impact claim was not allowed under the age discrimination law.

The justices did not give any indication of how they would rule. A ruling is expected by summer.

Laurie McCann, senior attorney with AARP, the former American Association of Retired Persons, said she felt the justices gave a more favorable hearing to the age discrimination claim than she had expected.

"I saw some serious questioning about the statutory language, and that is our strong card," McCann said, noting the similarity between the age bias law and those related to racial or sexual bias. In addition, she said the court's focus on the law's requirement that employers must have a "reasonable basis" for discriminating against older workers presumes that the impact of a company's policy may be the grounds for a suit.

But Stephen Bokat, senior vice president and general counsel for the U.S. Chamber of Commerce, said the justices showed a clear understanding of the justification for differences between the age discrimination law and other anti-discrimination laws.

"I came out of the argument feeling fairly confident that the business community has a good chance of succeeding in this case," Bokat said.

Ronald Rotunda, a law professor at the University of Illinois, said it would be hard to predict the outcome in this case. But he noted the court in the past has not given age discrimination the same protection under the Constitution as race and sex discrimination.

Age bias was cited in more than 20 percent of 80,840 discrimination complaints filed last year against private employers with the Equal Employment Opportunity Commission. Race and sex discrimination allegations accounted for about 67 percent.

_ Information from the Associated Press was used in this report.

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