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On Nov. 12, the Supreme Court will hear oral argument in General Dynamics Land Systems Inc. v. Cline. The question for the justices is whether it ought to be possible to bring a “reverse” case under the federal Age Discrimination in Employment Act — that is, whether the law protects the younger from being discriminated against in favor of the older. It’s an interesting case, and neither left nor right will have an easy time figuring out whom to pull for. Dennis Cline and other present and former employees of General Dynamics are challenging a collective bargaining agreement entered into by the company and their union, the United Auto Workers, in which retiree health benefits go only to those employees who are at least 50 years old as of July 1, 1997. On that date, the plaintiffs were all at least 40 years old (and thus old enough to be protected by the ADEA) but less than 50 years old (and thus too young to be eligible for the negotiated retiree health benefits). General Dynamics is claiming that the law doesn’t allow reverse discrimination suits. (The company has also raised a separate argument based on another part of the statute, sanctioning certain “bona fide employee benefit plan[s]“.) The ADEA was passed in 1967. The critical section of it reads: “It shall be unlawful for an employer . . . to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” In the statute’s “Statement of Findings and Purpose,” Congress found that “older workers find themselves disadvantaged” and thus declared that “the purpose of this chapter [is] to promote employment of older persons based on their ability rather than age.” That is, the statute says it protects workers 40 and older if employers discriminate against them “because of . . . age” — does that cover the situation where younger employers are suing because their employer is trying to grant benefits only to older employers? A DUBIOUS STATUTE Putting Cline aside for a moment, the ADEA is a dubious statute. It cannot be seriously argued that we need a federal presence in this area the way we did for racial discrimination, or that generalizations based on age are irrational or even unfair. Older people are more likely to have health problems and are closer to retirement. But they are also likely to be more stable and experienced. It also seems odd to protect over-40s from decisions usually made by other over-40s. Nor is age a classic immutable characteristic, like race, national origin, or sex — although perhaps too much ought not to be made of this. In a discussion of whether age ought to be a suspect classification, a Yale Law School student once argued to then-professor Robert Bork that the answer is no, since over one’s life the discrimination “will even out.” Bork observed that this reminded him of the senior partner at a law firm who confided that, when he was a young and inexperienced attorney, he lost many cases he should have won, but now had learned his craft so well that he won many cases he should have lost. “And so,” the partner smugly concluded, “in the end justice is done.” It is also true that a principle of law-enforced color neutrality is essential in a way that age neutrality is not. Protecting one race from discrimination and not another is offensive in a way that protecting the older, but not the younger, from age discrimination isn’t. Indeed, the ADEA expressly protects only those 40 and older — itself a form of age discrimination. Judge Richard Posner of the 7th Circuit wrote in his 1995 book Aging and Old Age that the ADEA is “at once inefficient, regressive, and harmful to the elderly.” And, in its brief to the Court, General Dynamics warns of “serious real-world harms” if plaintiffs win. Its retiree health plan “is identical in structure to hundreds of such plans that employers routinely offer,” and so striking it down “would generate massive disruption, and would have the perverse consequence of prohibiting employers from offering such benefits to anyone, because employers simply cannot afford to offer them to all employees forty or older.” The silliness of the ADEA — and the potential impact of Cline — will be multiplied if the Supreme Court recognizes a “disparate impact” cause of action under it. The circuits are split on this issue, and the Court dismissed as improvidently granted a case, Adams v. Florida Power Corp., it had taken last year to resolve the question. The continuing possibility of such suits bolsters General Dynamics’ warning that “every employment decision could be attacked not only by workers claiming they were disfavored because they were too old but also by workers forty or older claiming they were disfavored because they were too young.” This is similar to the tension between disparate impact and reverse discrimination challenges in race cases. The Supreme Court allowed the former in Griggs v. Duke Power Co. (1971), so business and the federal government urged the Court to limit reverse discrimination cases later that decade, in United Steelworkers v. Weber (1979). How, the companies asked, can you require us to hire and promote with an eye on the racial bottom line, and then let us be sued when we do? Likewise, businesses worry that, if reverse age cases are allowed, companies will be whipsawed between them and disparate impact claims. (Here’s a related irony: The graying part of the work force is disproportionately white and male. Thus, to the extent that the ADEA pushes employers to give favored treatment to older workers, it also results in unfavorable treatment for minorities and women. In his 1997 book The Excuse Factory, Walter Olson, a senior fellow at the Manhattan Institute, noted: “Race and sex complaints may get far more ink, but age complaints increasingly get more of the action.” Olson found that “age suits net considerably higher verdicts than other bias categories, often coming in twice as high as race.”) TRICKY FOR PURISTS And yet it does not follow that, because the ADEA is a dubious law, therefore conservatives should hope its scope will be limited by the rejection of reverse age discrimination cases. One obvious problem, of course, is that this might undermine the scope and legal validity of reverse race discrimination cases. Conversely, liberals ought also to have mixed feelings about this case. They generally don’t like reverse discrimination claims, but surely it must bother them that Cline is having his retiree health benefits yanked away by a big nasty company. Yes, the ADEA is designed to protect the old; but liberals like legal attacks against whatever they define as unfair, and doesn’t this qualify? (Maybe not: The AARP, the AFL-CIO, and the National Education Association — all liberal stalwarts — support the company.) More fundamentally, the important principle of textualism is central to this case. The philosophy behind textualism is that, if judges are not following the law as written, and if they substitute their own policy preferences for the legislators’ (in the case of statutes) or the people’s (in the case of constitutions), then we are living not in a democracy or a republic but in an illegitimate and judge-ruled oligarchy. That is a bad thing, and certainly not the social contract we have. As the U.S. Court of Appeals for the 6th Circuit — which ruled for Cline — wrote in this case, “We are not aware of any legal doctrine permitting courts to redraft anti-discrimination statutes so that they better advance the court’s view of sound policy.” Nontextualists, on the other hand, want a “living Constitution” — and “living statutes” as well. They would rather be ruled by judges than the people in the phone book, many of whom have not even been to a good law school. Texts are indeterminate, they say; besides, it bothers them to admit that government, from time to time, yields less than perfect results. Thus, the struggle between textualists and nontextualists has psychological as well as intellectual roots. Conservatives, real men, and nerds love rules. Justice Antonin Scalia wrote a famous law review article entitled “The Rule of Law as a Law of Rules.” To these people, following a rule, even if it leads to absurd results, is not painful; or, if it is, is still an activity of which one can be proud — an act of machismo, a refusal to flinch. They are happy to conclude that a ridiculous statute must be enforced as written; happy to uphold an insane regulation because there just isn’t anything specifically in the Constitution against it; happy to rule that the text of the ADEA protects the younger against the older, no matter whether this makes policy or historical sense. It is what we at the Justice Department in the early Reagan administration affectionately, even reverently, called “autistic textualism.” This is not to say that liberals, the non-macho, and non-nerds can’t be textualists, but when they are I bet that most don’t enjoy following the text to its absurd conclusion. They wince rather than smile. When he delivered the Francis Boyer Lecture on Public Policy at the American Enterprise Institute in 1984, Robert Bork began with this vignette: “It is said that, at a dinner given in his honor, the English jurist Baron Parke was asked what gave him the greatest pleasure in the law. He answered that his greatest joy was to write a ‘strong opinion.’ Asked what that might be, the baron said, ‘It is an opinion in which, by reasoning with strictly legal concepts, I arrive at a result no layman could conceivably have anticipated.’ “ Just so, Judge Bork. Should be an interesting oral argument and, when the decision comes down, an interesting lineup of justices. One last thing: The Bush administration will also be there, arguing that the federal government’s guidelines support . . . Dennis Cline. Roger Clegg is general counsel of the Center for Equal Opportunity, a Sterling, Va.-based think tank. Clegg can be reached at [email protected]. “Discriminating Eye” appears bimonthly in Legal Times.

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