Court Muddies the Waters on Age Bias in Workplace
Perhaps the worst thing that the California Supreme Court can do when it acts on any case is to further muddy the legal waters. That, unfortunately, is what the court did last week in the area of age discrimination.
The high court let stand a lower court ruling that allowed a company to lay off an older, more expensive worker while keeping younger, cheaper employees because, as the company argued, the only intention was to save money. While the court does not explain its decisions to grant or deny review, it appears in this case that five of the seven justices were not comfortable with a lower court’s decision in the age case. So even though a clear majority apparently had some problem with the appellate decision, it remains the law for now. And employers may see this case as a signal that it’s OK to dump workers over 40 in favor of younger--usually cheaper--employees. That’s definitely not OK.
The court’s action stemmed from a suit brought by a former aerospace accountant who lost his job when his employer, Loral Corp., downsized. Michael Marks was then 49 years old. Loral offered workers under age 40, but not Marks, transfers within the company. Marks claimed age discrimination, a violation of the state Fair Employment and Housing Act.
But a jury ruled against Marks after being instructed by the trial judge that “an employer is entitled to choose employees with lower salaries, even though this may result in choosing younger employees. If the choice is based on salary, there is no age discrimination.” The court of appeals decision last July upholding this jury instruction was roundly criticized, as it should have been. It immunizes discriminatory employer decisions that can be justified as cost saving, while dismissing factors such as an employee’s qualifications, productivity and performance. Such a cost-based standard can easily justify firing or refusing to hire people with disabilities or women of childbearing age, for example.
Most troubling is the Supreme Court’s muddled response. Three justices moved to exclude the appellate ruling from being used as a precedent in other cases, which often means that the justices disagree with the lower court but do not find the case a good vehicle for deciding a larger issue.
The Supreme Court has failed in its primary duty to provide clear and reasoned guidance to judges and lawyers and, in this case, to workers and employers across the state. Similar age discrimination claims are before lower courts and will no doubt be appealed.
The justices should take the first opportunity to state clearly that age discrimination in the workplace is wrong, it’s unfair and it’s illegal.
