Age-bias suits could proliferate after ruling

A ruling by the Supreme Court late last month that makes it easier for any worker over age 40 to accuse an employer of age discrimination might translate into more lawsuits in Rhode Island, according to one legal expert.

Rhode Island, along with the other New England states and Puerto Rico, did not allow such cases prior to the ruling, although the other U.S. states allowed them, said Michael J. Murray, a partner at Partridge Snow & Hahn’s New Bedford office who specializes in labor and employment law.

“We might see an uptick in this type of suit; this will be the latest fad,” he said. “They’re easy to bring, because you don’t have to prove intent, but they’re also easy to defend” because all businesses have to do is legitimize their reason for layoffs or pay cuts and the case would be thrown out. “This is walking a tightrope of compromise” for the states that had no previous ruling on the issue, Murray said.

The ruling was only a partial victory for workers, as the legal test established by the judges is much stricter than the one used in race and gender bias cases. The decision, however, opens the door to employee lawsuits challenging company actions like layoffs and retirement-plan changes. Workers filed almost 18,000 age-bias complaints with the U.S. Equal Employment Opportunity Commission in 2004.

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In the ruling, Justice John Paul Stevens wrote that in some cases, employers are entitled to treat workers differently based on age. The ruling sides with older police officers in Mississippi, in that they do not have to prove that the city purposely tried to discriminate against them, only that the policies unfairly harmed them. Despite this, the high court dismissed the suit, claiming that the officers failed to prove that.

Under the Supreme Court ruling, older workers now have less of a burden of proof to raise their claim in court when suing under federal law, Murray said, although it is still difficult to win an age discrimination case in court.

“Yes, they recognized what I think is a very broad defense, but employers still have to defend against the litigation, which is very expensive,” Ann Elizabeth Reesman, who represents the Equal Employment Advisory Council, an employer trade group, told Bloomberg News. “They approved a new cause of action. And so that allows for more litigation, lots more litigation.”

For businesses that might be subject to more of these claims, many of the cases would most likely be thrown out, Murray said, “but there is an expense. Lots of claims will probably be disposed on summary, and the judge can dismiss the lawsuit. If the employer brings proof of reason, the employee has to then prove it’s not true.”

Although it will now be easier for Rhode Island workers to allege age discrimination and bring a case to court, it will most likely be thrown out because companies can easily present legitimate reasons for the “discrimination,” he said.

Whether this ruling will result in more severance packages for employees has yet to be determined, but Murray said this is just another reason for having them.

“We see lots of severance packages already,” he said. “Employers want the agreement that they’re not going to get sued. This is another reason to have one.”

The Supreme Court has already ruled that “disparate impact claims” are allowed under Title VII of the 1964 Civil Rights Act, which bans discrimination based on sex, religion or race. Advocates for the aging claim that few employers would ever be completely forthcoming about intentionally favoring younger workers, making claims hard to substantiate. Employers say, however, that these claims made under the Age Discrimination in Employment Act would impede their ability to make decisions based on age-blind factors like training or performance, even if the group most impacted would be older workers.

“It’s just another arrow in the quiver of employees, and just another thing for employers to be worried about,” Murray said. “Ultimately the employer, especially if the job is done correctly, is much more cognizant of this and has evaluations and written warnings, so that if someone does need to be fired, it’s all documented.”

According to the U.S. Bureau of Labor Statistics, as of March there were more than 7 million workers over the age of 45 in the country, making up 40 percent of the work force. In Rhode Island in 2003, there were 207,000 workers over 45, representing 38.1 percent of the work force, and in Massachusetts in 2003, there were 1.2 million workers over age 45, or 38.7 percent of the work force in that state.

While there might be an influx of age discrimination cases in the wake of the ruling, Murray said he thinks eventually the issue will wane in popularity.

“At least in my practice, we’ve had very few age discrimination cases, whether this will now change,” is anyone’s guess, he said. “In the last couple of years, we’ve had maybe two cases. Now we’re waiting for the other shoe to drop.”

With Bloomberg News reports

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