When the U.S. Supreme Court issues its ruling on Smith v. the City of Jackson, Miss., it is expected to clarify for million of employees what they must prove in order to claim age bias in the workplace.
But depending on the outcome, some legal experts believe the court’s ruling could also ignite a firestorm of protest, galvanizing the country’s business and legal communities, and creating a political issue to be fought out in the halls of Congress.
The age discrimination case arose when the City of Jackson implemented a new salary plan with the intent of giving workers raises. But under the revised plan, police officers and dispatchers with fewer than five years’ tenure received proportionately greater raises than employees who had more than five years’ tenure. Thirty of those longer-tenured employees, who were over the age of 40, sued the city, filing two claims under the Age Discrimination Employment Act (ADEA) of 1967. One claim was for “disparate treatment,” or intentional discrimination, and one was for “disparate impact,” or unintentional discrimination.
Neutral but harsh?
“Disparate impact is basically when there is a plan that on its face seems to be neutral, but when implemented has a disproportionately harsh impact,” said Dave Collins, Lexis-Nexis expert and employment law attorney.
It is this second claim — and whether “disparate impact” is covered under the ADEA — that the U.S. Supreme Court heard oral arguments on earlier this month.
“If the ruling goes in favor of the City of Jackson, then I think for now the issue will be pretty much over, but if it goes in favor of the officers and dispatchers, I think you are going to see Congress get interested and involved,” Collins said. “I think the business community will definitely lobby Congress to amend the law and basically overrule the Supreme Court, which Congress very well could do.”
The business community, backed by the U.S. Chamber of Commerce, the National League of Cities and other heavy-hitters who have filed “friend of the court” briefs, is closely watching the case because a victory for the employees could open businesses up to new litigation based on existing business practices.
“Employers are concerned that if the Court does find that you can bring a disparate impact claim under the ADEA, it will make illegal a lot of hiring and firing policies in existence today and subject them to a lot of litigation under this act that they have not previously had,” said Collins. “The ADEA covers a lot of employers — those with 20 or more employees — so companies are also going to incur higher legal expenses just trying to get an opinion on what a disparate impact could possibly be and what action they will need to take with regard to their work force.”
The employees have their heavy-weights watching closely, too, with the AARP, the Florida Trial Lawyers Association, the National Lawyer’s Guild and others filing “friends of the court” briefs on their behalf.
A ruling against these employees could have huge implications for America’s work force. Almost 70 million workers, or nearly half of the civilian labor force, are 40 years old or older and fall under the protection of the ADEA.
“It is very tough to prove disparate treatment because you have to prove intent,” said Collins. “Claiming disparate impact doesn’t require that burden of proof. Employees would only have to be able to statistically show they are being harshly impacted.”
And the likely outcome is…
Which way is the Supreme Court likely to rule? Judy Johnson, a Mississippi College School of Law professor who teaches labor law and employee discrimination and is the author of a soon-to-be-published article on the subject, believes the court will side with the workers.
“I think the Court will say the disparate impact theory does apply to the ADEA. I don’t see how they could do anything else,” said Johnson. “But the question then is, what does the employer have to do at that point? What does he have to do to justify having a policy that negatively impacts older workers?”
Johnson believes the answer will be “not much.” She believes that the Court will allow the defense of “business necessity” and will not require the burden of persuasion.
“I see them splitting the baby a lot,” Johnson said. “And this would be a good baby-splitter, saying ‘Yes, disparate impact does apply to the ADEA, but the defense is that the employer has to articulate some legitimate reason.’”
When the Supreme Court will rule is also open for interpretation. The current session runs through May, but a ruling on this case is expected to come early next year.
Contact MBJ contributing writer Mara Hartmann at firstname.lastname@example.org.
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