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Justices Decline to Review Age Bias Case

December 8, 2003

WASHINGTON (AP) _ The Supreme Court on Monday dodged an opportunity to decide if older people may sue over job layoffs that seem to hit them hardest, a major age discrimination case that came to the court after three tough years of company cutbacks.

Justices have been looking for the right case to resolve the standard for age discrimination suits.

A 1967 law bars on-the-job age bias, but the court has never said if the law allows suits on grounds that an employer’s action had a ``disproportionate impact″ on older workers. The law covers about 70 million workers age 40 or older, or nearly half of the work force.

In 2002, justices scuttled one attempt to settle the question, in a challenge by fired utility workers in Florida.

The court on Monday refused to hear the appeal of a former Electronic Data Systems Corp. employee from Alabama who claimed that the company targeted people over age 40 for layoffs. Justices did not explain their rationale.

EDS, which is based in the Dallas suburbs, had argued that this case was a bad one for the court to review, because Jack Thweatt Jr. did not give specific enough information about alleged discrimination.

Thweatt’s lawyers argued that the company gave lower performance rankings to older employees, so that they would be up first for layoffs.

At issue is whether elderly workers have to prove that employers intended to discriminate. That is often a harder case to make than claims that layoffs that appear evenhanded on their face disproportionately hurt older workers in reality.

EDS attorney Martin Wymer of Cleveland, Ohio, said that if impact cases are allowed, companies would struggle to defend themselves. ``With creative statisticians, just about anyone could make some sort of showing of a statistical disparity,″ he said Monday.

Some federal appeals courts have allowed that type of age bias lawsuit, but many others have not.

``Until the (Supreme) court settles this, employees’ rights depend entirely on where they live,″ said Thweatt’s attorney, John Crabtree of Key Biscayne, Fla.

EDS slashed thousands of jobs over the past three years as the market for computer services slumped.

So far in 2003, companies have announced 1.1 million job cuts, compared to more than 1.4 million in 2002 and nearly 2 million in 2001, according to employment research firm Challenger, Gray and Christmas.

The Supreme Court is already reviewing one age discrimination case this term, which asks whether middle-aged workers can sue their employers for treating older workers better.

The case rejected Monday is Thweatt v. Electronic Data Systems Corp., 03-349.


On the Net:

Supreme Court site: http://www.supremecourtus.gov

EDS: www.eds.com

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