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WASHINGTON — The Supreme Court appeared sympathetic Wednesday to the plea of corporate America and the AARP that it not interpret the Age Discrimination in Employment Act in a way that pits older workers against younger workers over 40. The case, General Dynamics Land Systems Inc. v. Cline, No. 02-1080, could have broad impact on whether companies can give any kind of favored treatment to older workers, such as better health benefits, relaxed hours, or even voluntary buyouts. The ADEA protects workers 40 and older from workplace discrimination because of age. But the question before the court is whether the law permits younger workers within that protected class — say, age 40 to 55 — to challenge benefits or actions that favor workers 55 or older. General Dynamics was sued for deciding, through collective bargaining, to offer retiree health benefits only to those workers who were at least 50 on July 1, 1997. Workers between 40 and 50 asserted that the benefit violates the ADEA. The Sixth Circuit U.S. Court of Appeals agreed, relying on the “plain language” of the statute that bars any kind of employment decision based on age that affects workers over 40. If the high court upholds the Sixth Circuit and finds that such “reverse discrimination” age lawsuits are permitted, it would have the “perverse effect” of encouraging employers to eliminate benefits for all workers, according to a brief filed by the U.S. Chamber of Commerce and other business groups. The AARP, while not siding with either party, also said that if the Sixth Circuit is upheld, the protection of the ADEA would be “turned on its head.” It also warned that to avoid disparate treatment of workers over 40, employers would likely decrease benefits across the board. “It would be a disaster for voluntary buyouts and early retirements,” says employment lawyer Condon McGlothlen of Seyfarth Shaw. “The alternative will be cold reductions in force.” Several justices appeared to agree with that view during spirited oral arguments Wednesday. When the younger employees’ lawyer Mark Biggerman of the Cleveland firm Buckley King seemed to shrug off the wider implications of the Sixth Circuit’s ruling, Justice Stephen Breyer assailed his position. Almost every hiring decision preferring one worker over another of a different age would give rise to a lawsuit, Breyer said, turning federal courts into “employment courts.” Breyer added, “Your position will blow up this act, destroy it.” Even Justice Antonin Scalia, who usually espouses a “plain language” analysis like the one taken by the Sixth Circuit, seemed to find that approach untenable in this case. Scalia described the lower court ruling as “so fanciful a version of what Congress intended that I won’t interpret the statute that way.” After the attack on Biggerman, Deputy Solicitor General Paul Clement gamely tried to defend the same position. Benefits that favor older workers feed the “stereotypes” that the ADEA was passed to combat, Clement said. He also said not all benefits would fall under the Sixth Circuit rule, because employers would still be able to frame different treatment on the basis of seniority — for example, giving benefits to those on the job for 30 years or more. Donald Verrilli Jr. of Jenner & Block, who argued on behalf of General Dynamics, said a ruling upholding the Sixth Circuit could threaten a range of other benefits, including employee stock ownership plans. The only sharp questioning of Verrilli came over the extent to which the position of the Equal Employment Opportunity Commission in favor of the younger workers should be given deference by the court. Verrilli said it was entitled to no deference at all. Tony Mauro is Supreme Court correspondent for American Lawyer Media andThe Recorder’s Washington, D.C., affiliateLegal Times. His e-mail address is [email protected].

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