High Court Hurts Older Worker

The Supreme Court, dominated by appointees of former President Reagan, is disturbing not only liberals but also many conservatives with recent decisions that have badly damaged laws against job discrimination.

The battle now raging between Congress and the White House over a major new civil rights bill is partially obscuring the politically significant fact that the Reagan court is too conservative--at least on job discrimination issues--even for the Bush Administration and many Republicans.

And while the current dispute over the proposed broad Civil Rights Act of 1990 continues, Congress is wrestling with a separate bill to overturn another startling high court decision that shattered 20 years of legal precedent protecting older workers.

Besides that decision, the court has made it harder for employees to win employment discrimination cases.

The general civil rights battle between the White House and Congress is not over whether to reverse the decisions that weakened anti-discrimination laws. Instead, it is over how far the proposed new laws should go.

The Senate last Wednesday passed a fairly decent, broad civil rights bill, but Bush said he will veto it in its present form. However, Bush and leading congressional Republicans did say repeatedly that they want a bill that will reverse at least part of those distressing court decisions.

While Bush hasn’t shown any signs of wanting a meaningful new civil rights measure, it is still something of a comfort to know that the Supreme Court has run into trouble from Bush and other Republicans for its rulings undermining laws designed to prevent job discrimination against women, minorities and older workers.

The court decision involving older workers was issued last year. Many employers, most members of Congress and Bush Administration officials all appeared stunned by the ruling, which said it is usually OK for employers to discriminate against older workers when it comes to severance pay, insurance and other fringe benefits.

The decision was a surprise because there were only minor quibbles from employers over the long-standing rule that required equal fringe-benefit treatment for all workers, regardless of age.

The Democrats quickly came up with a proposal to reverse that decision, which came in the case of a speech pathologist, June Betts, an Alzheimer’s disease victim.

The court said Betts was too old to get $350 a month in disability benefits. Because she was 61 and therefore entitled to $150 a month in early-retirement benefits, she would have to accept the lower amount.

Had she been two years younger and not eligible for early retirement, she could have received the higher disability benefit open to younger workers.

The court decided that she might have been discriminated against because of age, but it was not illegal because the law didn’t clearly protect older workers against fringe-benefit discrimination.

The Administration backed a bill to make the issue absolutely clear, even to the most conservative court, and, despite a last-minute flip-flop in the White House, it is still expected to pass. It is no longer certain, though, that Bush will sign it.

The general civil rights bill is designed to restore some of the muscle that the Supreme Court took out of all anti-discrimination laws. But the decision dealing just with older workers’ fringe benefits has broad implications because of the trend toward early retirement.

That limited court ruling means, in effect, that employers can offer inducements to encourage even more early retirements without having to offer equal benefits to those who are eligible or nearly eligible for full pensions.

For example, from 1969 until the court’s decision, it had been illegal for a company to reduce its work force by offering a special bonus to only those workers who agree to retire before they are entitled to a full pension. Retirement-age workers had to get the same offer.

Even without special incentives, though, more and more workers are retiring before age 65.

Most employers fought vainly against a law that took away their right to get rid of workers solely because of age. Industry leaders warned that, if older workers could not be forced to retire, their companies would be crowded by elderly men and women who would stay in their jobs and not make room for younger employees. Those employer warnings turned out to be groundless.

Not only are most workers retiring when they become eligible for pensions, but younger ones are retiring in greater numbers than ever before.

In 1948, 90% of men between 55 and 64 were in the work force. Today, only 67% of men in that age bracket are still working, according to a study by the Employee Benefit Research Institute.

(The trend has been different for women, as more and more of them have taken jobs outside the home. In 1970, 43% of women between 55 and 64 were in the work force. The proportion has gone up slightly, to 45%.)

The institute says increased retirement income from public and private sources seems to be the main cause of early retirement among men.

But as new entrants into the labor force decline, the need for older workers is increasing. That need cannot easily be filled when employers offer special incentives to workers to retire before 65.

Sen. Howard Metzenbaum (D-Ohio), a sponsor of the bill to protect equal fringe-benefit rights of older workers, says the court followed “cruel and tortured logic” in deciding that employers should be allowed to practice fringe-benefit discrimination.

He is right and the court was wrong in approving such discrimination, not only because it was patently unfair to older workers, but also because it wrongly encourages the early-retirement trend.