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I recently attended an employment law seminar at which a judge on the Eastern District bench observed that the participants should pay particular attention to age discrimination claims because the Age Discrimination in Employment Act is the only statute that would cover everyone in the room, sooner or later. While the recent U.S. Supreme Court decision in General Dynamics Land Systems v. Cline doesn’t change the fundamental coverage of the ADEA — that those over 40 are covered by the act — the court held that those of us who have just turned 40 are not protected by the act if discriminated against in favor of older workers. EMPLOYEES OVER 50 In Cline, Dennis Cline and almost 200 co-workers brought suit in 1997 against General Dynamics on the basis of a recently enacted provision in the collective bargaining agreement between the company and the United Auto Workers that eliminated General Dynamics’ obligation to provide health benefits to employees under 50 who retired from the company. Previously, the company had paid benefits to all retirees who had worked for 30 years, regardless of their age at retirement. Cline and his co-workers claimed that the agreement discriminated against them on the basis of their age, as it penalized them for their youth (between 40 and 49) and illegally favored those employees 50 or older. The ADEA, they pointed out, prohibits discrimination against “any individual because of such individual’s age.” The act, on its face, does not distinguish between “age” as being old or young. The district court rejected Cline’s claim of what it called “reverse age discrimination,” but the 6th U.S. Circuit Court of Appeals looked at the plain language of the statute and the U.S. Equal Employment Opportunity Commission’s interpretative guidance and reversed the district court’s decision. Justices’ Reasoning Last month, the Supreme Court, in a 6-3 decision, found that the natural reading of the ADEA makes clear that the act’s purpose is to eliminate favoritism toward the young. As the court observed, the “enemy of 40 is 30, not 50.” This is supported by the preface to the act, which discusses impediments suffered by “older workers” and the congressional debate prior to the ADEA’s enactment, which quite clearly was concerned with discrimination against older workers, not in favor of them. The court further looked to what it called common experience in finding that society tends to favor youth and that older workers are in need of protection by way of the ADEA. Finally, the majority found that federal court decisions have been virtually unanimous in rejecting the application of the ADEA to younger employees. The three dissenting justices — Clarence Thomas and Anthony Kennedy, along with a separate dissent by Antonin Scalia — found that the plain language of the statute does not limit age discrimination to older workers but, as noted, prohibits discrimination “because of such individual’s age.” “Age” in this context is a neutral term. Furthermore, the EEOC has interpreted the act to apply to any discrimination on the basis of age, so long as the plaintiff is over 40, regardless of whether the favored employee is older or younger. Scalia, in particular, found that the EEOC’s interpretation is “neither foreclosed by the statute nor unreasonable” and should be applied. The majority brushed aside the EEOC’s views as “clearly wrong.” INTERPRETATION REJECTED The dissent also noted that one of the principle sponsors of the ADEA, Sen. Ralph Yarborough, D-Texas, said during debate that the act “prohibits age being a factor in the decision to hire, as to one age over the other, whichever way the decision went.” This would indicate that it was Congress’ intention that the ADEA cover age discrimination of employees over 40, regardless of whether the favored employee was older or younger. Both the majority and the dissent opinions noted that the senator’s comment was the only one on point to this specific issue. Furthermore, Yarborough’s views were noted by the majority to have previously carried weight with the court. However, in this case, his comment was called an “outlying statement” that “is not enough to unsettle our reading of the statute.” The decision seems in part to be based more on common sense than on strict statutory interpretation. The majority diminishes its well-settled reliance on the plain language of the statute in favor of placing the act in context. It is as if the court said, We all know what this means, although Congress may not have been as clear as it should have been. N.J. CLAIMS The Pennsylvania Supreme Court has not considered the Pennsylvania Human Relations Act’s application to age discrimination in favor of the old. The Supreme Court of New Jersey, however, has interpreted the New Jersey Law Against Discrimination to apply to decisions based on age, regardless of whether the disfavored employee is older or younger than the person chosen or retained. In Bergen Commercial Bank v. Sisler, the New Jersey court in 1999 considered the same neutral-language use of the term “age” as was considered by the Cline court and found that the LAD prohibited discrimination against younger employees and not just those over a certain age. The Sisler court noted that the LAD, unlike the ADEA, does not contain a minimum age for its application (as noted, the ADEA only applies to those 40 and older). Commentators have already split on whether the ruling aids older employees in allowing discrimination in their favor or hurts at least the younger segment of the over-40 work population, as that group can be disfavored in relation to even older employees. As a practical matter, the decision will allow employers to make health benefits available to certain employees or retirees, but not to others, on the basis of age, so long as such decisions give greater benefits to the oldest segment of the employee/retiree population. The decision also preserves the defense in age discrimination cases where an older employee replaces a younger, (albeit over-40), one in the workplace. Had the court found the other way, employees over 40 who are replaced by even older employees would be able to sue for age discrimination, claiming that they were disfavored because of their youth. This would have been contrary to the fourth element of the 3rd U.S. Circuit Court of Appeals’ prima facie case of age discrimination, which requires that an employee claiming age discrimination be replaced by a sufficiently younger person so as to establish an inference of discrimination ( Benjamin v. E.I. du Pont de Nemours & Co., (July 23, 2003)). It should also be noted that numerous federal appellate courts have held that an employee fails to establish a prima facie case of age discrimination where the employer retains workers older than the plaintiff.

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