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Supreme Court considering 5 ageism cases

The Supreme Court justices don't confront age discrimination - they have life tenure and no mandatory retirement age. The Supreme Court justices don't confront age discrimination - they have life tenure and no mandatory retirement age. (J. Scott Applewhite/Associated Press/File 2006)
Email|Print| Text size + By Mark Sherman
Associated Press / February 18, 2008

WASHINGTON - There is only one antibias law - the one against discrimination based on age - that would cover all nine Supreme Court justices, if such laws applied to them.

The justices, ranging in age from 53 to 87, are the last people to worry about such things in their own lives. They have life tenure and no mandatory retirement age.

Yet the justices are confronted by allegations of age discrimination in five cases this term. While the sheer number of cases probably can be explained away as coincidence, the topic is one of growing importance as more people work longer because of economic necessity or by choice.

"The importance of protecting older workers as the work force ages is enormous," said Stu Cohen, AARP's director of legal advocacy. "More older workers remain in the workforce and projections are that the percentage will continue to expand."

The percentage of people 65 and older who work has grown from 10.8 percent in 1985 to 16 percent last year, AARP said. For people ages 55 to 64, the numbers also are up, from 54.2 percent in 1985 to 63.8 percent in 2007.

The Age Discrimination in Employment Act applies to workers at least age 40. It prohibits discrimination based on age in hiring and firing, promotions, and pay.

"Literally every employee at some point is going to be protected by it because all of us get older. It's true whether you are a male, female, minority, or not. It's not true for any other statute. It's a very broad class of protected people," said Steven R. Wall, a partner at the Morgan, Lewis & Bockius law firm in Philadelphia.

The cases at the court this year include what kind of evidence an employee may present to bolster an age discrimination claim; whether retirement-age workers are entitled to disability payments; and whether federal workers who complain about age discrimination are protected from retaliation. Decisions in all the cases are expected by late June.

The retaliation case, which will be the subject of oral arguments tomorrow, involves a postal worker in Puerto Rico who complained of discrimination and retaliation. Federal courts dismissed the retaliation claim, saying there is nothing in the age discrimination law that allows such claims by federal employees.

Other antidiscrimination laws provide protection from retaliation for government workers, said Eric Dreiband, former general counsel to the Equal Employment Opportunity Commission. The language in the laws are different "and it would appear deliberately different," Dreiband said.

The AARP and the National Treasury Employees Union are backing the employee.

The most important case from employers' perspective involves "me-too" evidence in a lawsuit filed by a woman who was 51 when she was laid off by a subsidiary of Sprint Nextel Corp.

The fight at the Supreme Court is over whether she should be able to introduce testimony from other employees who also say they were victims of age discrimination, even though they worked for other supervisors. The employee, Ellen Mendelsohn, said such evidence is crucial to establishing a culture of discrimination.

Another case tests whether a retirement plan can treat disabled employees of different ages but similar tenures differently.

Kentucky's public retirement system prohibits employees who become disabled and are eligible for retirement from collecting disability retirement benefits, which can be more generous than regular pensions. The state says those employees are entitled only to their regular pensions.

By contrast, an employee who becomes disabled before he is eligible for retirement will receive a disability pension. A former employee, backed by the Equal Employment Opportunity Commission, says the older worker often will receive lower benefits, sometimes dramatically so, in violation of the age discrimination law.

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