Supreme Court Hears Arguments on Major Issue in Age Bias Law

By LINDA GREENHOUSE

WASHINGTON, March 20 -- Discrimination in the workplace can be subtle and hard to prove. For that reason, Congress and the Supreme Court have devised rules enabling workers who lack direct evidence of intentional race or sex discrimination to sue their employers by showing that a seemingly neutral policy falls more harshly on one group than another without a valid business reason for the disparity.

But whether this "disparate impact" theory can be used for another important category of job discrimination, discrimination based on age, is an open question. It is, in fact, a burning question in employment law. Judging by a Supreme Court argument today in an age discrimination case against a Florida utility company, it is also a difficult question with no clear answer.

The case was brought by 117 employees who lost their jobs at the Florida Power Corporation through a series of reorganizations and reductions in the work force in the mid-1990's. All were over 40 years old, the point at which the Age Discrimination in Employment Act of 1967 forbids employers to discriminate against workers "because of" age. In all, more than 70 percent of the affected Florida Power workers were over 40.

After initially permitting the case to proceed as a class action, the Federal District Court in Tampa changed its mind and said there could be no class-action lawsuit because the age discrimination act required proof of intentional discrimination against each plaintiff. It was not sufficient to show that the reorganizations had a "disparate impact," the court said. The United States Court of Appeals for the 11th Circuit, in Atlanta, agreed.

Arguing the workers' appeal, John G. Crabtree said that "disparate impact exists to detect subconscious stereotypes operating in the workplace." Reductions in force that fall more heavily on older workers but that could not be challenged under the disparate impact theory would, Mr. Crabtree said, "allow employers to get rid of older workers where there is a corporate culture pervaded by ageism."

Plaintiffs do not win their cases simply by showing a disparate impact. Rather, under the rules that apply for race and sex discrimination, evidence of a disparate impact, which is often based on statistics, shifts the burden of proof to the employer to justify the disparity. The age discrimination law provides that actions that would otherwise be prohibited can be justified if "the differentiation is based on reasonable factors other than age."

There was much debate today over the meaning of that phrase.

Mr. Crabtree said the exception had no point if the law required proof of a discriminatory motive in every instance, because every case would simply come down to the employer's intent regardless of other factors.

But Glen D. Nager, arguing for the company, said the phrase bolstered his view that "age has to be a but-for cause" and that the law was violated only by intentional discrimination on the part of the employer.

"This statute at every turn was concerned with employer intent," Mr. Nager said.

Justice Antonin Scalia challenged that interpretation.

"If there were an intent requirement, it wouldn't matter" whether the other factors referred to in the statute were reasonable or not, Justice Scalia said, adding, "It could be any factor, as long as it was not age."

Each side faced challenges in persuading the court to read the ambiguous text its way. For Mr. Nager, the company's lawyer, the challenge lay in the fact that in its core definition of discrimination, the Age Discrimination in Employment Act tracks exactly the language of Title VII of the Civil Rights Act of 1964, enacted three years earlier to forbid employment discrimination on the basis of race and sex. In 1971, the Supreme Court ruled that a Title VII violation could be proven through disparate impact, a decision that Congress ratified when it amended the Civil Rights Act in 1991.

"We know that Congress copied Title VII quite deliberately" when it passed the age discrimination law, Justice Ruth Bader Ginsburg said to Mr. Nager.

It was "unseemly to take identical words" and interpret them differently, Justice Ginsburg said.

For Mr. Crabtree, the plaintiffs' lawyer, the challenge lay in persuading the court to take age discrimination more seriously than it has done in recent cases. Justice Sandra Day O'Connor observed that when the court devised the disparate impact test for race discrimination cases, it did so against `'a long history of societal bias against black people." But "we don't have that in age discrimination," she said to Mr. Crabtree.

Justice Stephen G. Breyer also sounded skeptical.

"There are so many rules correlated with age," Justice Breyer said. "How can an employer run his business" without courts second-guessing every decision, he asked Mr. Crabtree, adding, "That's the problem."

Mr. Nager picked up on that concern in his half of the argument. In advising companies on how to avoid age discrimination lawsuits, he said, "we advise employers to use quotas" when structuring layoffs to make sure that all age groups are represented among the affected employees.

The disparate impact question, Mr. Nager said, "makes a huge difference at a practical level and a legal level in the resolution of age discrimination cases."

This case, Adams v. Florida Power Corporation, No. 01-584, reached the court in a broader context. Employer groups and conservative legal organizations have recently taken aim at the disparate impact theory across a variety of civil rights statutes, where the theory was not explicitly provided by Congress but rather inferred by the Supreme Court in an earlier, more liberal day.

A recent publication by the National Legal Center for the Public Interest, a conservative legal group here, said the disparate impact approach was "going haywire" and "deserves to be attacked at every opportunity."

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