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Nationwide attention, biz implications for Jackson case

Jackson — National news sources from CNN to “The Today Show” carried reports recently about a U.S. Supreme Court ruling in the case of Smith vs. City of Jackson that has major implications across the country regarding age discrimination.

“The AARP is pleased with the Supreme Court’s ruling on the fight to eliminate age discrimination,” said Walter Howell, associate state director of the AARP in Mississippi. “What we argued in Smith vs. City of Jackson is that disparate impact is essential to root the persistent and widespread stereotypes the Supreme Court has called the essence of age bias. To put it in plain language, the ruling says that an employer can be sued under the Age Discrimination and Employment Act if they take action that results in discrimination in older workers — whether it was intentional or an unintended consequence.”

AARP joined the case as a friend of the court (amicus brief). The case involved 30 older police officers and dispatchers in the city who claimed that a new salary plan gave larger increases to employees under age 40. They lost in the lower courts and appealed to the Supreme Court.

Attorney Laurie McCann, who filed the amicus brief for the AARP, said the ruling is a major boost.

“Evidence that an employer is intentionally out to get older workers is very hard to come by,” McCann said. “This is an enormously significant decision because federal appellate courts have increasingly held that the ‘disparate impact’ method of proof may not be used to prove age discrimination.”

Howell said disparate impact, which was in question in the Jackson case, involves employment policies or practices that are on the surface neutral in that they do not mention age, but in fact fall more harshly on older workers. An example would be a school district announcing a policy that it would not hire any new teachers with more than 10 years of teaching experience.

“In the past, some federal courts have ruled that disparate impact may be used to show age discrimination,” Howell said. “However, in recent years more courts have decided that older workers always must prove intentional bias by employers. The recent momentous Supreme Court decision sets a uniform standard for handling of disparate impact cases.”

Howell said under the disparate treatment theory, the employer simply treats some people less favorably because of their age. To succeed under the disparate treatment theory, the discrimination victims must prove that the employer has a discriminatory motive.

Under the second theory, disparate impact, an employer’s neutral policy or practice may be unlawful, even absent a showing of discriminatory intent, merely because it has a significant adverse impact on the protected group. Examples of such policies include refusing to hire anyone with more than 10 years of experience, or targeting for layoff individuals eligible for early retirement benefits.

But while the ruling has important nationwide implications for legal proof of age discrimination, the Supreme Court ruled that the police officers did not prove age discrimination. The Supreme Court ruling upheld the city’s pay plan as it was applied to police officers, finding that the pay plan did not violate the federal age discrimination laws.

“The pay plan was designed to recruit and retain sworn police officers,” said Jackson Mayor Harvey Johnson. “I have no doubt that the pay plan helped to get us to where we are today with 500 sworn officers and a 21% reduction in crime. The Supreme Court’s opinion, authored by Justice Stevens, found the city’s pay plan to be ‘unquestionably reasonable’ and addressed the city’s desire to retain new officers.”

Johnson said it was also a very significant case historically for the city’s legal department, which for the first time was handed a victory from the highest court in the land. Jackson City Attorney Terry Wallace was part of the legal team that appeared before the high court to argue the case in the fall of 2004.

The ruling was significant because it was the first time the U.S. Supreme Court had ruled on this type of issue.

“It was very important that the Supreme Court speak on this issue, and they did,” Howell said. “AARP’s position is that we didn’t make any judgment of the merits of the plaintiffs’ or the defendants’ case. Our interest was in the right to sue under the federal Age Discrimination and Employment Act. And the court ruled there is a right to sue for disparate impact.”

It is expected that businesses will now be cautioned by their attorneys that they can be sued even if they don’t intentionally discriminate.

“If there is evidence of age discrimination, they can be sued,” Howell said. “The ultimate result is that employers are going to be a lot more careful now.”

Howell said AARP has long pushed for elimination of age discrimination, emphasizing the importance of educating employers about the ability and affordability of older workers. The organization also continues its efforts to better inform older people about the opportunities and advantages of work. And AARP continues to seek government policies for employers to hire older workers and for individuals to keep working.

Contact MBJ contributing writer Becky Gillette at bgillette@bellsouth.net.

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