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Published: Tuesday, 11/18/2003

No reverse age discrimination

Baby boomers have been called a lot of things, but selfless generally isn t one of them. Neither is patient. Both attributes seem plainly missing in an age discrimination lawsuit the Supreme Court is debating that pits 40-something workers against their older colleagues over job benefits.

The case presents an interesting illustration of the “me generation” in action. It involves about 200 angry General Dynamics Corp. workers in Ohio and Pennsylvania upset because they weren t getting the kind of benefits offered older employees. They sued their employer on grounds of age discrimination saying they were being denied those same benefits because they were too young.

You ll forgive the longtime, over-50 workers receiving full health benefits from General Dynamics from admonishing their 40-something colleagues to grow up. There may be acceptance all around that benefits could be better but there is little sympathy for younger employees who want what seniority earns.

It also seems doubtful that the justices weighing the merits of the reverse age discrimination lawsuit - the average age on the court is nearly 70 - will be particularly sensitive to the arguments of the 40-something crowd. The 67-year-old Antonin Scalia said if mid-career workers win in this instance, the law that was supposed to protect older workers from discrimination could actually end up harming them, “... a very strange consequence of this legislation.”

The 1967 discrimination law gave workers over 40 the right to sue when younger colleagues got preferential treatment because of age. Middle-aged workers suing older colleagues who got preferential treatment is a new interpretation of the law. But an appeals court upheld their right to sue under the Age Discrimination in Employment Act.

General Dynamics, which makes battle tanks and combat vehicles for the military, was sued when it changed its retirement benefits package in 1997. Before then senior employees could retire and receive full health benefits.

That changed under a new union contract at company plants in Lima and Scranton, which offered full retirement health benefits only to longtime workers 50 or older as of 1997.

The crux of the case, concluded Justice Stephen Breyer, comes down to a human question. Can a company cut older workers nearing retirement some slack without illegally discriminating against workers in their 40s?

Curiously, the business-friendly Bush administration has taken sides against General Dynamics and with the workers, saying the law is “crystal clear” about protecting people over 40 from discrimination.

But charging reverse age discrimination is a new twist to the law that Congress wrote and may eventually need to rewrite with more specifics.

It s possible a victory by General Dynamics workers could hurt many other employees. Chicago labor lawyer Condon McGlothlen said companies might be more inclined to lay off senior workers rather than face a lawsuit for treating them more generously at the end of their working lives.

The struggle for jobs and benefits between young and not-so-young members of the baby boom generation is misdirected in this case. Rather than fight each other, the 70 million boomers who comprise about half the nation s labor market would be better to flex their collective workplace muscle for improvements in retirement security.



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