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Court Must Help Sort Out Issues of Ageism

Society: Unless we can keep older, productive people working, labor tightness will slow down the economy.

March 21, 2000|BETSY M. ROSS | Betsy M. Ross is a senior fellow at the Hudson Institute and former lieutenant governor of New York

Roger Reeves went to work for Sanderson Plumbing Products in Columbus, Miss., when he was 17. Forty years later, the company fired him. The company president told Reeves that he was let go for allowing employees to come in late and falsifying time records. Reeves said that two months before he was fired, one of his supervisors told him he "was too damn old to do the job." Reeves sued for age discrimination and a jury awarded him nearly $100,000 in lost pay and damages. But a federal appeals court overturned it, ruling that although Reeves showed the lateness charges were probably untrue, he failed to show that the real reason for his firing was age discrimination.

Today, Reeves has his day in the U.S. Supreme Court. The stakes are high not just for Reeves but for other older workers, for employers fearful of being sued and for an economy so short on labor that it needs older people to stay in the work force.

In 1967, Congress passed the Age Discrimination in Employment Act to outlaw mandatory retirement in most cases and protect workers over 40 from being terminated or demoted simply because of age. Decades later, it is unclear how much and what kind of evidence is needed to sue an employer for age discrimination and take your case to a jury. The legal confusion and the aging of the work force have helped fuel a 300% increase in job-discrimination lawsuits since 1990. Clear legal guidelines are needed.

In the case of Reeves, the most important question the justices will have to answer is whether a fired employee has to present evidence of discrimination in order to sue for age discrimination. Some appeals courts have ruled that an employee need only prove that the reason given by the employer for the firing was untrue, as Reeves showed. The presumption is that an employer who lies about a firing is lying to conceal unlawful discrimination. Other appeals courts, including the one that overturned Reeves' award, said that the worker also must offer direct evidence of age bias--such as derogatory remarks about old people--in order to proceed to trial.

The remarks made to Reeves were unmistakably biased. Besides his other remark, his supervisor said Reeves "must have come over on the Mayflower." The appeals court ruled the remarks were insufficient evidence of discrimination because they were not made close in time to the firing by a person actually involved in the decision. The court may have set the bar too high; the remarks were made two months before his firing by a supervisor married to the company president. That's pretty close to top management.

AARP (formerly the American Assn. of Retired People) insists that disparaging remarks about old people, no matter who utters them or when, should be considered evidence of "hard-core prejudices" in the workplace. But that is not always true. Ageism is so embedded in our society that it is inevitable that a loose-lipped employee will call someone an "old bag" or "deadwood." If every incident can result in a lawsuit, employers will be reluctant to hire and retain older workers. It should be enough for a company to show that it has a policy against ageist remarks, including punishing employees who utter them. Sanderson Plumbing didn't have that.

Even after the high court decides Reeves' case, it will leave unsettled other important issues facing older workers and their employers. What about familiar expressions such as "deadwood" and "new blood"? They are not comparable to the blatant insults Reeves endured. But one appeals court ruled that they are evidence of an atmosphere hostile to older workers, while another appeals court decided that these are not code words for bias.

The federal appeals courts also have disagreed on whether a company that downsizes by firing its most senior, expensive employees is guilty of age discrimination. Clearly, that method of cutting costs has a disparate impact on older workers, but does that make it unlawful? Is seniority just a pretext for age discrimination? The Supreme Court has refused so far to rule on that question, leaving us in legal limbo.

Over the next two decades, the United States is facing a severe labor shortage. Unless we can succeed in keeping older productive people working, labor tightness will slow down the economy and reduce the standard of living. Dealing with age discrimination is a moral and economic imperative.

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