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Published: Thursday, 3/4/2004

Ohio s Supreme Court sets new criteria in age-bias cases

BY JAMES DREW
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - In a decision that could benefit older workers and make it tougher for companies to cut costs, the Ohio Supreme Court yesterday changed the standard that courts use to decide whether to hear age discrimination lawsuits.

Since 1983, “terminated workers filing age discrimination lawsuits had to prove four elements for their case to move forward: they were 40 years old or older, had been fired, qualified for their job and replaced by someone under the age of 40, or fired so a person under 40 could keep their job.

But in a 4-3 decision released yesterday, the high court changed that standard to say that fired older workers can establish their case as long as the replacement worker is “substantially younger,” which also could mean a replacement worker who is 40 years old or older.

For example, yesterday s ruling opens the door for a lawsuit to reach trial if a 64-year-old worker files a case involving a replacement worker who is 40.

The biggest impact of yesterday s decision is that victims of age discrimination will “get fuller remedies,” said Fred Gittes, an attorney who filed a friend of the court brief on behalf of four groups, including AARP and the Ohio Academy of Trial Lawyers.

Under federal law, workers who are fired because of their age can receive back pay and “front pay” - what they would have earned during the period in which they waited for their case to reach conclusion.

The same applies under state law, but age discrimination victims also can receive punitive damages and there s no cap on the amount.

“You are talking about individuals in the most critical periods in their lives, the 55-year-old manager with a daughter and a son in college and who may have invested in pensions and other investments,” Mr. Gittes said.

“All of a sudden they have lost their jobs. They have no income. They have to draw down on their pension funds. Their children s education would be in jeopardy. When you ve been with a company for 15 to 20 years, your ability to move into a comparable position is a lot harder than when you start out,” he added.

The Ohio Chamber of Commerce is “disappointed” by yesterday s decision because it “clearly sets a different standard than what has been followed here over the past 20 years,” said lobbyist Linda Woggon.

But she said the new standard now mirrors the federal one, and a plaintiff still must prove that a company discriminated based on age, she said.

“While we are disappointed, it is not the wild decisions we have gotten in the past,” Ms. Woggon said.

The state Supreme Court tallies cases based on whether they are civil or criminal, but doesn t break down the age discrimination cases, said court spokesman Chris Davey.

Writing for the majority in yesterday s decision, Justice Maureen O Connor, a Republican, said Ohio s standards for establishing an age discrimination case should be consistent with a 1996 U.S. Supreme Court decision.

That unanimous decision said since federal anti-discrimination law prohibits discrimination based on age, the fact that a replacement worker is “substantially younger” is a better standard than setting a specific age cutoff such as younger than 40.

Justice O Connor said Ohio courts should follow federal courts in deciding on a case-by-case basis what “substantially younger” means. She was joined in the majority by Republican Chief Justice Thomas Moyer, Democrat Alice Robie Resnick, and Republican Paul Pfeifer.

Justice Evelyn Lundberg Stratton, a Republican, dissented. She was joined by fellow Republican Terrence O Donnell, and Democrat Francis Sweeney.

“I believe that if a change is warranted to modify or expand the criterion from a person under age 40 to a person of substantially younger age, then this change should be accomplished by the General Assembly, not the judiciary,” Justice Stratton wrote.

Yesterday s decision came in a Columbus case that attorneys for 49-year-old James L. Coryell filed. He lost his job in February, 2001, in what Bank One Trust Co. called a “reorganization.” Mr. Coryell was replaced by a 42-year-old, John Kozak.

Mr. Coryell sued, alleging age discrimination. A judge ruled in favor of Bank One s motion to dismiss without a trial, saying Mr. Coryell had failed the part of the four-part test that says the replacement worker must be under 40 years old.

An appeals court upheld the decision, but the Supreme Court yesterday reversed it and sent Mr. Coryell s lawsuit back to the trial court.

About five months after he lost his Bank One job, Mr. Coryell landed a job with Fifth Third Bank in Louisville, Ky., but at a lower annual salary, said his attorney, Russell Kelm.

Jeff Lytle, a spokesman for Bank One in Ohio, declined comment yesterday.



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