Court Broadens Scope of Age-Discrimination Protections
By DAVID STOUT

WASHINGTON, March 30 - The Supreme Court ruled today that older workers can, in some circumstances, recover damages from their employers for harm caused by age discrimination even if the harm was not deliberate.

The court, ruling 5 to 3 in a case closely watched by business interests, held that the 1967 Age Discrimination in Employment Act does allow such lawsuits. But the court also made clear that the estimated 75 million people covered by the law - workers over age 40 - must clear a high threshold of evidence to prevail.

Justice John Paul Stevens and the four other justices who joined him in the main thrust of today's ruling alluded to earlier Supreme Court findings that good faith by employers "does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."

Justice Stevens, using the technical language that has accompanied years of court arguments over interpretation of the law, said the act does allow recovery of damages in "disparate impact" cases - that is, in instances in which the effect on older workers is unintentional - as well as "disparate treatment" cases, when the effect is clearly deliberate.

This is seriously curious for a couple of reasons. First of all, the "disparate impact" argument has been rejected where racial discrimination is concerned.

But attorneys for the State of Alabama took one last shot. They asked the U.S. Supreme Court to declare that Congress never intended private individuals to be able to bring lawsuits directly under the authority of the Title VI implementing regulations. The Court agreed to hear the case, and on April 24,

2001 they reversed the judgment. By a 5-4 majority in Alexander v. Sandoval (the same breakdown of individual Justices deciding in favor of George W. Bush in Bush v. Gore), the Court concluded that Congress only intended these regulations to be directly enforceable by the Office of Civil Rights a political body with very limited resources not by a private right of action.

The other reason is, Justice Scalia voted with Justices Stevens, Souter, Ginsburg and Breyer. The opinions given are revealing:

Justice Antonin Scalia filed a separate opinion, saying "disparate impact" claims alleging a hurtful effect are acceptable based on the Equal Employment Opportunity Commission's interpretation of the congressional statute, not the majority opinion's "independent determination" of the law.

Had Rehnquist been well enough to be involved in this case from the beginning, he'd have likely voted with the Stevens, Souter, Ginsburg and Breyer and everyone would have said "the oldest Justice was the swing vote."

Scalia was, undeniably, the swing vote here, yet he manages to excoriate the more liberal judges for their "activism": while voting with them. He does so by yielding to the executive branch of government's interpretation of the legislative branch's intent. Talk about staying on message.

But why? What would make Justice Scalia decide a constitutional issue this way when he obviously so disagrees with the decision he won't even sign onto his own vote?

Just imagine the repercussions of telling the Baby Boomer generation they can't sue for age discrimination.

And we're talking about raising the retirement age, right? How can you suggest that immediately after saying you can't sue for age discrimination?

Because it has been decided that individuals can't sue for race discrimination, only the Office of Civil Rights. They can for age discrimination, but not race discrimination. That is a contradiction that, if challenged, cannot be easily maintained.