Court ruling opens door for age cases, but not widely

Jacksonville Business Journal - May 6, 2005

by Paul Ivice

Correspondent

JACKSONVILLE -- Despite the attention it received, a U.S. Supreme Court ruling recently on two age-discrimination cases is unlikely to spur a wave of new filings, local labor lawyers say.

In a ruling handed down March 30, the court opened the door for older workers to bring age-discrimination claims against their employers based on a theory of "disparate impact" involving a group of terminated workers in addition to discriminatory intent based on an individual.

Though the court allowed for disparate impact claims for the first time in age-discrimination cases, it ruled that police officers in Jackson, Miss., failed to prove their claim. The justices also gave employers the tools to defend against the new type of claims, previously known to apply to race and gender cases.

The police officers filed suit under the federal Age Discrimination in Employment Act, claiming that revisions in Jackson's employee pay plan gave smaller raises to older workers than to newer ones.

Some advocates for older workers, including the AARP, hailed the 5-3 decision in Smith v. City of Jackson, Miss., as a landmark victory because it is often hard to prove discriminatory intent on the part of employers.

But the sting of the ruling for employers was softened by language in the decision distinguishing age from race discrimination and preserving "reasonable factors other than age," such as cost-cutting, as a defense.

The Supreme Court ruling was "an overall victory for the plaintiffs' bar because now there's no doubt you can have a disparate impact ADEA claim," said Damon Kitchen, a partner at the Jacksonville office of Constangy, Brooks & Smith, which mostly represents employers.

Plaintiffs attorney Archibald Thomas agreed, saying that because lower courts had been divided on the issue, it was a victory for plaintiffs to establish the disparate impact theory in age cases.

Charles Johnston of the Jacksonville firm Johnston & Hammond saw it more of a split decision between employers and employees. "The media portrayed the Jackson case as important for older workers, but I'm not sure it's going to have the great impact that was initially portrayed in the media."

Employers can still prevail in such cases, Johnston said, if they can provide a bona-fide occupational qualification defense. "What this tells me is that as long as employers are conducting their business in a manner that doesn't discriminate against older workers specifically, their defense will be upheld even though it may have a disparate impact against older workers."

Some attorneys don't think the ruling will have much effect on employers for now, only on how lawyers litigate cases.

"In a very real sense, it doesn't change the law and it doesn't change what happens in the workplace, but it might change what happens in a trial," said longtime Jacksonville attorney Guy Farmer of Holland & Knight. "It is somewhat surprising that they didn't do this a long time ago, though maybe they didn't have the right case."

Age-based cases are different from other discrimination cases "because if we all live long enough we're going to be in a protected status," Kitchen said. "You can't change your race, normally don't change your gender or religion. These are immutable characteristics.

"Age cases become much more difficult to defend the further [the plaintiff] gets into the protected status," Kitchen said. "I've always found age cases fascinating because they had their genesis in the Fair Labor Standards Act, not Title VII." Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex or national origin.

Attorneys agreed that the complex statistical information required to prove a case of disparate impact means there are limited opportunities for such cases to succeed.

"Employees have a heightened burden of proving disparate impact," said Mike Prendergast, a partner at Coffman, Coleman, Andrews & Grogan, a Jacksonville firm that represents only employers. "The employer only has to show a reasonable factor other than age for its decision.

Some local executives said the high court ruling won't change much in the way most large companies do business.

"It doesn't change anything at Fidelity [National Financial Inc.] we need to do," said Kelly Feese, human resources director and senior employment counsel at the Fortune 500 company based in Jacksonville.

"Most companies, just like we do, look and determine to make sure in a downsizing not to be heavy-handed against any particular group," Feese said.

Others agreed. Blue Cross and Blue Shield of Florida Inc. has policies in place to verify that any actions it takes do not disproportionately affect minorities and older workers, said Mark Wright, a company spokesman. "We are continuously monitoring our policies to verify that application of our policies does not disproportionately impact any class of employees."

Scott Fortune of the Fortune Law Offices in Jacksonville Beach said he sees it as a "middle-of-the-road" decision. He expects there will be more cases containing a disparate impact theory because the theory hasn't been fully used, especially in age-discrimination cases.

"Will there be more successful cases? Probably not," he said. "The end result is neutralized, or at least the impact is not a clear victory for the employee."

Cases including a theory of disparate impact involving statistics will leave a jury cold, Fortune said, compared with the typical case of disparate treatment of one individual or small group of workers.

Disparate treatment cases carry an emotional advantage with jurors. One such case in U.S. District Court last November resulted in a $775,000 award to a crane operator who had been terminated by Atlantic Marine Inc.

Robert L. Kirkland, 62, had worked for 10 years for Atlantic Marine as a model employee who never missed a day of work, then was told he was being terminated in a downsizing, Fortune said.

Kirkland's wife had been recuperating from a stroke and the couple was dependent on the insurance coverage they had through his employer. Fortune said Kirkland learned he had been replaced less than 90 days later by a worker about 20 years younger.

Fortune said Atlantic Marine attempted to justify firing Kirkland by claiming he was trying to form a union, even though it is a federal crime to fire someone for that reason.

The award included double back pay, front pay to age 68 and $300,000 for mental anguish, though Judge Henry Adams still must rule on motions seeking to overturn the award.

But even cases like that are not easy to pursue, Fortune said, noting that he had put $200,000 of his time into the case, plus about $20,000 in expenses to prepare for trial.

A pending age-discrimination case has former First Coast News investigative reporter Winston Dean suing the TV station and its owner, Gannett News Corp., claiming he was wrongfully terminated.

Dean, who's now selling real estate using his real name, Thad Toomer, is represented by Johnston and awaiting a ruling by Adams on a defense motion for summary judgment.

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