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Published: Thursday, 11/13/2003

Justices hear case of reverse age bias

BLADE STAFF AND WIRE REPORTS

WASHINGTON - Supreme Court justices with an average age of nearly 70 wrangled yesterday over whether workers in their 40s can sue employers for offering better benefits to older colleagues, a type of reverse age discrimination.

About 200 General Dynamics Corp. workers in Lima, Ohio, and Pennsylvania brought the case, claiming they were discriminated against because they were too young to get benefits being offered to older colleagues.

People over 40 can sue under a federal age-discrimination law when younger colleagues get preferential treatment because of age. Justices will resolve whether workers over 40 can sue when older employees get better treatment such as cheaper health care or choice work hours.

During yesterday s oral arguments, some justices joked about their own senior citizen status, but then more seriously focused on company efforts to help older workers stay on the job longer. Many seemed skeptical of allowing the reverse discrimination lawsuits.

Justice Antonin Scalia warned that if the mid-career workers win in this appeal, a law “meant to aid older workers ... ends up harming them, a very strange consequence of this legislation.”

An appeals court ruled that the General Dynamics employees could sue under the 1967 Age Discrimination in Employment Act. About 70 million U.S. workers, about half of the nation s work force, are at least 40.

At the heart of the case is a human question, Justice Stephen Breyer said: whether companies can cut some slack to employees close to retirement age without illegally discriminating against employees in their 40s.

The administration is backing the suing workers. Government lawyer Paul Clement said the law is clear in protecting people over 40 from discrimination. He said innocent-sounding accommodations for older workers can promote stereotypes that the law is designed to stop.

General Dynamics was sued when it changed its retirement benefits in 1997. Until then, longtime company employees could retire and receive full health benefits. Under the new union contract at General Dynamics Land Systems plants in Lima and Scranton, Pa., only longtime workers 50 or older as of 1997 could receive full health benefits after retirement.

General Dynamics, which makes battle tanks and combat vehicles for the military, is supported in the case by unions, business groups, and the AARP, the advocacy group for people 50 and over.

Company lawyer Donald Verrilli, Jr., told justices that “people at the end of their working lives are at a different position” and companies should be allowed to help them.

Mark Biggerman, the lawyer for the workers who brought the case, said companies cannot single out gray-haired workers for better treatment than those with fewer gray hairs. That prompted the dark-haired Justice Scalia, 67, to joke that senior citizens do not necessarily have gray hair.

In a ruling yesterday, the Supreme Court unanimously ruled that the Social Security Administration can deny disability benefits to a worker who is physically capable of returning to her old job - even if that job does not exist in significant numbers in the economy.

The disability decision was made in the case of Pauline Thomas, a New Jersey woman with a heart condition who sought disability benefits after her job as an elevator operator was eliminated. The 3rd U.S. Circuit Court of Appeals had ruled that Ms. Thomas should be allowed to present evidence to an administrative law judge that the job of elevator operator is obsolete.

Overturning the 3rd Circuit and siding with the Social Security Administration, the Supreme Court in an opinion by Justice Scalia said the 3rd Circuit had misanalyzed language in the Social Security Act.

Under the act, a worker is considered disabled - and eligible for Supplemental Security Income - “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.”

Justice Scalia said the 3rd Circuit had committed both a legal and a grammatical error in linking the clause about “substantial, gainful work which exists in the national economy” to the first definition of disability: that an individual is incapable of doing his old job.

Justice Scalia said that the 3rd Circuit s interpretation could lead to bizarre results. For example, a worker who was able to do his previous job could refuse to return to work - and collect disability benefits instead - because his job category did not exist in significant numbers in the overall economy.

Michael McGough of The Blade Washington Bureau contributed to this report.



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