Top Court Rules On Age Bias Case
By George Anderson
By a 5-3 vote, the U.S. Supreme Court has held that age bias against workers over 40 is illegal under the Age Discrimination in Employment Act, even if it is unintentional.
With its ruling, the nation’s highest court has said that discrimination based on age, as has been previously ruled in cases of racial and sexual discrimination, can not be legally justified even if it results from workplace rules intended to benefit.
Citing an earlier decision of the court in a case filed under Title VII of the Civil Rights Act of 1964, Justice John Paul Stevens wrote, “good faith does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”
Thomas Goldstein, the attorney for the 30 police officers and dispatchers who were plaintiffs in this case – Smith v. City of Jackson – said, “It is a very significant ruling because it is so hard to prove purposeful age discrimination.”
AARP lawyer Laurie McCann said, “You don’t often have a smoking gun. This is a huge shot in the arm for age-discrimination plaintiffs.”
Stephen Bokat of the National Chamber Litigation Center told USA Today, the Court’s ruling means employers will need to be very careful in making corporate policy decisions
that affect workers over 40, such as changes to retirement and benefits’ programs.
Moderator’s Comment: Do you agree with the Supreme Court ruling that intent is not necessary to establishing age discrimination in the workplace? What
will this ruling mean for employers in retailing and related industries?
The good news for employers in this ruling is that the Court has said that if legitimate factors other than age can be established for a workplace decision,
companies cannot be found guilty of discrimination.
According to the USA Today report citing numbers from the U.S. Bureau of Labor Statistics, there are 72.8 million workers were over age 40 in the
U.S. –
George Anderson – Moderator
Age discrimination happens every day in the work force. I need someone for this job that is “hungry,” “more aggressive,” “looking to make a name for himself,” or a couple of other euphemisms for “younger.”
How many of you want to go out and change jobs or companies after age 50? I’ll be glad to wager that for every employer who wants an older (read more mature or experienced) worker over 40, there are 10 with jobs for the under 40 group. I’ll even give odds.
This is not a panacea that will cure all, but it opens debate and will cause many companies to pause and rethink decisions that may have been blithely made in the past without regard to the impact on many long term employees. Not everyone is going to be happy, but all in all, preventing discrimination benefits everyone.
Companies don’t engage in age discrimination out of innate prejudice. They do it to save money. In many professional and even less-skilled jobs, an over-40 person is often disadvantaged because employers don’t want to pay a premium for their experience and maturity.
For this reason, I agree with the Supreme Court’s position that age discrimination may take place without pre-formulated intent. And I believe employers should consider the implications of their hiring policies and decisions before they are implemented.
Retailers are as guilty of this bias as anyone because they are under such pressure to control costs. I am sympathetic with their predicament, but I feel they have a responsibility to hire fairly nonetheless. I would hope that this ruling helps to establish a minimum standard for employer behavior that at least helps level the playing field.
This will certainly give all companies reasons to pause and review their employment decisions. In the end though, the result of this ruling will more likely mean only an increase in litigation. The over 40 crowd will not benefit in any measurable way. A key factor here is that piece about “legitimate factors.”
This will mean more red tape for retailers. Personally, I believe a company should be able to hire and fire people without contracts the same way we are able to choose our friends and mates. Being self employed, I am hired and fired, accepted and rejected on a daily basis. Maybe it’s because I’m over 40, maybe it’s not. Being old is just something I have to deal with and overcome. Probably for every job someone over 40 is getting fired, there is a job opening for someone needed/preferred over 40.
The logic of the arguments here today puzzle me somewhat. They kind of run the gamut from discrimination for any reason is okay to agreement with the decision, yet believing the problem will still exist.
I find the generational dynamic very interesting, as those that benefited from their fathers’ or previous generations’ longevity are so quick to dismiss it. I also find it interesting that those who seem to agree with the verdict still seem to find the practice acceptable. I am rather puzzled by it, and have real mixed feelings about the whole issue.
What we have lost as a part of the corporate mentality, I think, is indicative across society, culture and has a tremendous amount to do with the difficulties we discuss regularly about loyalty in retail. The fact that it’s absent from, now, most all segments of society shouldn’t surprise us when we find it absent from retail. Or at a minimum, volitle.
Now, don’t misunderstand that I am confusing performance with loyalty. However, many times they go hand in hand. We expect it from one side of the proposition – our customers – yet disrespect it from the other side of the proposition – our workers. Odd, isn’t it?
I am not only confused as to the seeming acceptance of the practice, but bewildered by the lack of recognition of the consequences and their import. I wonder if it has much to do with the remnants of the ‘me’ generation. I also wonder how they feel when they are the one’s whacked for having no value due to their age. They are next in line and maybe that is why we see rulings like this. Could it be a taste of the medicine from the younger ones they taught what to do with them didn’t taste so great when it was their turn?
I think there is a real dynamic and transitional phase going on here that will have very interesting results and implications.
I completely agree with David. There are already so many restrictions on business when it comes to employee hiring, discipline or termination. How many employees, regardless of age, are skating by in their position, continuing sub-par performance behavior, because employers are afraid of taking disciplinary action? We, the consumers, ultimately pay for underperforming employees through poor service and the high cost of lawsuits. What’s happened to personal responsibility? People take on the title of “Victim” far too easily.
I would just further comment on some of the previous notes.
“Downsizings” and layoffs are done to reduce costs. Sometimes it’s to eliminate redundancy and gain cost synergies after a merger, sometimes it’s because the company is struggling and unprofitable, especially when top line revenue growth slows or reverses.
Either way, but especially the latter, experienced (read over 40) employees always stick out, especially those that have reached a career plateau, because they frankly are generally a lot more expensive (salary, health care costs) than someone 15-20 years younger. Any company who denies this is a factor in decisions is lying – though some will go to great efforts to hide it (e.g., intentionally finding some younger ones to let go, actually targeting percentages by age bracket, or changing individual decisions in the initial cut list after some age impact analysis is done).
I have been a manager through many downsizing efforts, and this is just the way it works.
I agree strongly at one level that there are already too many restrictions on business and employee decisions. But I think inevitably these will get worse. I have mixed reactions on this one, however, because the reality is that it is generally much easier for a 27 year old to find another job than it is for a 57 year old – just visit a Home Depot sometime and find all the former white collar workers now wearing orange smocks. And we’ll all be there some day. So this one is hard for me. The root of the problem is not the layoffs, but the fact than other companies will not hire the older workers who have been let go for the same reasons: salary and health care costs, and to a lesser extent the “energy/initiative” issue/perception.
Scanner’s points about loyalty are particularly interesting. This seems another case of do what I say, not what I do. Retailers want and demand loyalty, spending huge amounts of money, often mis-targeted and mis-used as we frequently say here, trying to create it amongst customers. They spend little or no time or money trying to create it amongst employees, as our frequent discussions on training and motivation show. He is right about it now being a fact of life – people are not loyal to anyone in business for any reason at all. Those of us who read and contribute regularly and try to advocate taking long term, innovative, creative and lateral thinking type views of business have got very strong views on whether this is a good or bad thing. Sadly, for many businesses, short-termism rules OK. Which, of course, means that employees’ careers will remain short term, lasting from youth to middle age and that’s it.
One final thought – if you keep hiring new, young blood you will, it is true, continue to get new ideas and plans. But if you have the sort of business that thinks only in the short term, with people being forced out because they cost too much once they reach 40 or so, there is possibly not enough time for the best ideas to reach fruition.
I happen to agree with the Court. My experience isn’t direct, but as I’ve observed these suits, I notice how difficult it is to prove that there is a deliberate attempt to discriminate. It is much easier to prove that the policies lead to harm and damage.
The truth is that few employers would ever be up front about intentionally favoring younger workers, making age bias claims especially hard to win.
But as I read the articles, I notice the hint of message that employers say allowing these claims would hinder their ability to make decisions based on age-neutral factors, such as training or performance, even if the impact happens to be greater on older workers.
In my opinion, the ruling seems to strike a balance between the two positions.
On the one hand, it allows older workers to make a claim irrespective of intent; but at the same time, it gives the employer the ability to raise “reasonable” factors, such as cost-cutting, to justify a practice that penalizes older workers so it prevails at trial.
Because older workers tend to be longtime employees with higher pay, the ruling seems to indicate that a business could not simply cut expenses without violating the law even if no ill intent was involved.
However, perhaps my siding with the ruling has more to do with the fact that I am now part of more than 70 million workers who are 40+. Need to protect us frail 40+ers!