Protecting older workers

April 05, 2005

ABOUT HALF of American workers are over 40 years old, a proportion that is not expected to change anytime soon as even the youngest baby boomers are a long way from retirement. With more workers changing jobs more frequently throughout their careers, the chances that they will encounter some form of age discrimination are high. That's reason enough to hail the U.S. Supreme Court's decision last week making it easier for older workers to bring age-bias lawsuits against offending employers.

A 5-3 majority found that older workers are entitled to the same standard of proof that has long been applied in lawsuits alleging race or sex discrimination under Title VII of the Civil Rights Act of 1964. That standard does not require workers to show that an employer intended to discriminate on the basis of race or sex, only that the employer's actions had a disparate impact that was more harmful to those workers. But lower courts had often required older workers who were suing under the 1967 Age Discrimination in Employment Act to meet the higher standard of intentional discrimination.

While the court's latest decision lowers the threshold for older workers, it also recognizes that employers have more leeway under the ADEA than they do under Title VII. They can win an ADEA case if they can show that any questionable practices or policies were based on "reasonable factors other than age." But given the continuing and even increasing need for mature, experienced workers, employers would be wise not to put themselves in the position where they need to make that excuse.

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