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The Supreme Court on Wednesday opened the door for older workers to bring age discrimination claims against their employers based on disparate impact rather than discriminatory intent. But the Court also gave employers the tools to defend against the new type of claims. Advocates for older workers, including the AARP, hailed the 5-3 decision in Smith v. City of Jackson, Miss., as a landmark victory because it is often hard to prove discriminatory intent on the part of employers. “This is a major boost for the fight to eliminate age discrimination in the workplace,” said senior AARP attorney Laurie McCann. “Evidence that an employer is intentionally out to get older workers is very hard to come by.” But the sting of the ruling for employers was softened by language in the decision distinguishing age from race discrimination and preserving “reasonable factors other than age” as a defense. “This is disparate impact lite,” said Lawrence Lorber, a partner in the D.C. office of Proskauer Rose who counsels employers. “The employer doesn’t have to prove business necessity�just some reasonable factor” as the rationale for treating older workers differently. Cost-cutting is one such reasonable factor, Lorber said. One sign that Wednesday’s decision was not a complete win for plaintiffs is the fact that, even though the 5-3 majority allowed for disparate impact claims, the Court unanimously said that the older workers in the case before them had failed to prove their claim. Police officers in Jackson, Miss., filed suit under the Age Discrimination in Employment Act, claiming that revisions in the city’s employee pay plan gave smaller raises to older workers than to newer ones. Both the District Court and the U.S. Court of Appeals for the 5th Circuit ruled against the employees. Justice John Paul Stevens, writing for himself and Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, said the city’s explanation for the difference�that it needed to make the salaries of junior officers more competitive with other departments in the area�was acceptable and did not violate the age law. “While there may have been other reasonable ways for the city to achieve its goals, the one selected was not unreasonable,” said Stevens. “Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.” Justice Antonin Scalia agreed with the result, but arrived at the conclusion on the basis of administrative deference to the Equal Employment Opportunity Commission, which says that disparate impact claims are permitted under the law. Justices Sandra Day O’Connor, Anthony Kennedy, and Clarence Thomas joined in an opinion stating that disparate impact claims are not permitted. “Congress never intended the statute to authorize disparate impact claims,” O’Connor wrote. Chief Justice William Rehnquist did not vote in the case, which was argued in November�when Rehnquist was receiving cancer treatments and had announced that he would not participate. Tony Mauro can be contacted at [email protected].

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