Supreme Court Debates Age Discrimination Issue

Times Staff Writer

The Supreme Court took up a case Wednesday that recalls President Reagan's famous rejoinder to Walter F. Mondale when, at 73, Reagan was asked whether the age issue might affect his bid for reelection.

"I am not going to exploit for political purposes my opponent's youth and inexperience," he replied, referring to Mondale, then 56.

Now, in a new twist on the age issue, General Dynamics, the defense contractor, is defending itself against age discrimination charges in a lawsuit brought by its younger workers.

The first reverse age-bias case to reach the Supreme Court began when a tank-making division of the company promised lifelong health care to workers who were at least 50 years old in 1997. Denied this benefit, workers who were in their 40s sued, claiming that their rights under the federal age-bias law were violated.

The younger workers won the age-bias claim in a lower court. And, bolstering their case, they won the backing of the Bush administration and the U.S. Equal Employment Opportunity Commission, which enforces the age-bias law.

But the justices of the Supreme Court, who range in age from 55 to 83, heard arguments to reconsider what they apparently saw as the startling notion that it is illegal for employers to give special benefits to older workers.

They talked about the virtues of gray hair and the wisdom that comes with age. They also spoke of what Justice Ruth Bader Ginsburg referred to as "the recognition that the older you get, the more problems you have." She asked if it wouldn't be reasonable for employers to consider these problems, especially for valued older workers. What about older employees who want to work a lighter schedule or "flex time?" she asked. And what about the older workers who cannot pass a physical fitness test?

"Is that discrimination prohibited by this act?" asked Ginsburg, 70, referring to the Age Discrimination in Employment Act of 1967.

What about stock options that are given to older employees? asked Justice Sandra Day O'Connor, 73. "A whole array of laws could be affected by this," she said.

The younger workers hoped that they would have an ally in Justice Antonin Scalia, 67, who said judges should focus on the words of the law, not the grand aims of the Congress that passed it.

The 1967 law says, "It shall be unlawful for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's age." The law applies to employees "who are at least 40 years of age."

In some cases, employers may prefer workers who have more experience or seniority. Moreover, the law allows them to establish minimum ages for pensions and other retirement benefits. In the General Dynamics case, however, the lower court judges said the "plain words" of the law forbid a company to give health-care benefits to those at least 50, but not to those who are younger.

Bush administration lawyers agreed. The law does not only bar bias based on "old age." It also forbids discrimination based on age, and that includes the 45-year-old who loses out to the 55-year old, they said.

Deputy U.S. Solicitor General Paul Clement, 37, arguing in favor of the younger workers, said the law bars employers from relying on stereotypes based on age, regardless of whether the stereotype is that older workers are wiser or weaker.

But this was too much even for a strict constructionist such as Scalia.

"So, a piece of legislation meant to aid older workers ends up harming them. It would be a strange consequence" if this view prevailed, Scalia said. When Mark Biggerman, an advocate for the younger workers, said the law forbids all age discrimination, Scalia interjected, "That seems to be a fanciful interpretation of what Congress intended."

"Your view will blow up this act, destroy it," added Justice Stephen G. Breyer, 65.

The case, General Dynamics vs. Cline, has attracted wide attention among business groups. They fear a ruling upholding a claim of reverse age discrimination would leave employers vulnerable to lawsuits whenever they give special retirement incentives or other benefits to their older employees. However, that prospect looked unlikely by the end of the oral argument.

Congress did not intend to authorize lawsuits "for youth discrimination," said Donald Verrilli, a Washington lawyer for General Dynamics. It did not set "a rigid rule of equality for everyone age 40 and older."

As the attorney for the appealing party, Verrilli spoke first but did not use all of his 30 minutes of argument. Often, lawyers reserve a few minutes of their time so they can get in the last word. But when Chief Justice William H. Rehnquist asked Verrilli if he had final comments, the lawyer said he had nothing more to add, signaling the justices might have already made the case for him.

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