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Saying “the enemy of 40 is 30, not 50,” the Supreme Court has declined to recognize a cause of action for what might be called reverse age discrimination. The ruling ended a unique challenge to the interpretation of the federal Age Discrimination in Employment Act of 1967 (ADEA) and with it a fight by some 200 defense-contractor employees to regain retirement benefits promised to older workers, but not to them. General Dynamics Land Systems Inc. v. Cline, No. 02-1080. While the 6-3 decision adds a gloss of finality to the question of whether an employer can be sued for favoring older workers over their younger colleagues, attorneys familiar with the ruling are uncertain what the fallout will be. Plaintiffs’ attorney Mark W. Biggerman of Cleveland’s Buckley King said he was disappointed by the ruling and that he feared “it will end up hurting all employees 40 and over in the long run.” The loss was bittersweet for Biggerman, 36, an associate who typically represents employers, not employees. This oral argument before the nation’s highest court was his first. General Dynamics was represented by Donald B. Verilli Jr., a partner at Chicago’s Jenner & Block. A firm spokesman said that at its client’s request, Jenner & Block would have no comment on the ruling. A firm press release, however, called it “a significant victory.” It added that at oral argument Verilli had told the court the act “did not set a rigid rule of equality for everyone age 40 or older.” Protected class All the Cline plaintiffs were 40 and older and part of the protected class covered by the act. Employees of General Dynamics’ tank division in Sterling Heights, Mich., they sued after their employer, in negotiating a new collective bargaining agreement in 1997, eliminated post-retirement health benefits for workers then younger than 50. The plaintiffs contended that by favoring some protected-class workers over others, General Dynamics had committed an act of reverse age discrimination. In 2002, a 6th U.S. Circuit Court of Appeals panel agreed. That decision conflicted with a 1992 7th Circuit ruling in Hamilton v. Caterpillar Inc., 966 F.2d 1226, setting the stage for a Supreme Court showdown. In reaching its conclusion, the high court parsed the meaning of the word “age” as it is used in the act. The statute at 29 U.S.C. 623(a)(1) says it is unlawful “to discriminate against any individual . . . because of such individual’s age.” Justice David H. Souter’s majority opinion acknowledged that “age” in this context contained no modifier indicating from what direction the discrimination may be coming. But, reading the ADEA as a whole and relying heavily on its legislative history and its relationship to other federal laws, Souter concluded that the act “does not mean to stop an employer from favoring an older employee over a younger one.” That conclusion repudiated a contrary reading by the U.S. Equal Employment Opportunity Commission (EEOC), which had backed the suit and submitted a brief siding with the Cline plaintiffs. An EEOC spokesman declined to comment on the decision. A statement released by its general counsel, Eric Dreiband, said, “The Court’s decision clarifies the law on the question and will aid in our enforcement” of the act. Justice Clarence Thomas, joined by Justice Anthony M. Kennedy, dissented. Thomas, who chaired the EEOC from 1982 to 1990, criticized the majority for tarrying over the meaning of “age.” “The plain language of the ADEA,” he said, “clearly allows for suits brought by the relatively young when discriminated against in favor of the relatively old.” Justice Antonin Scalia also dissented. Lawrence Z. Lorber, a employment attorney at Proskauer Rose, called the decision “a no-brainer.” “The older you get,” he said, “the better treatment you get . . . .You have all of these laws, and something has to be done to read them consistently. Otherwise you’ve got chaos.” Biggerman warned, “Today the line is 50 and older. But based on that opinion, what’s to stop an employer from saying we’re cutting all benefits to workers under 70?” Employment lawyer David R. Levin, a partner at Washington’s Wiley Rein & Fielding, said Biggerman was right but only in theory. “Why would anyone want to keep somebody that’s costing them more?” he asked. “They generally don’t. That’s why there’s an age discrimination act.” Harris’ e-mail address is [email protected].

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