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The Supreme Court appeared sympathetic Nov. 12 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 U.S. Court of Appeals for the 6th Circuit 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 6th Circuit and finds that such “reverse discrimination” age suits 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 6th 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. Several justices appeared to agree with that view during spirited arguments. When the younger employees’ lawyer Mark Biggerman of Cleveland’s Buckley King seemed to shrug off the wider implications of the 6th 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.” He 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 6th 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 6th 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 6th 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. Verrilli said it was entitled to no deference at all. Also last week, the Supreme Court on Nov. 10 granted review in Intel Corp. v Advanced Micro Devices Inc., No. 02-572. At issue in the case is the power of U.S. courts to grant discovery of materials sought in disputes before foreign tribunals. Intel is challenging a 9th Circuit ruling that sided with Advanced Micro Devices in its discovery request in connection with an antitrust complaint it made against Intel before the European Commission five years ago.

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