(8/8/11)- In light of all the cutbacks and eliminations that have occurred in the last few years for retiree benefits we at therubins are going back to this article and will enhance on it in the coming weeks and months.

Strangely enough it is middle-aged workers who are suffering the most in the recession that has occurred recently in this country. According to analysts at the Bureau of Labor Statistics (BLS), the companies that are doing the hiring nowadays are hiring the young and the old, but leaving the middle aged workers on the sideline.

Since December 2009 through this June, the number of people employed in the 20-34 age group expanded by 1.07 million, a 2.5% increase, according to the BLS data. Employment among workers 55 to 64 grew 915,000, a 4.3% rise.

Middle-aged workers held 919,000 fewer jobs than they did 18-months ago-a 1.4% decline.

(11/4/04)- Can an employer be sued for age discrimination when corporate layoffs result in a disproportionate impact on older workers? This is the interesting question that will be resolved by the U.S.Supreme Court when it gives its interpretation of a suit brought by dismissed older workers of the former Florida Power Corp.(Adams vs. Florida Power).

The suit was brought under the Age Discrimination in Employment Act (ADEA) by the older workers of Florida Power who claimed that over 70% of the people laid off by the company in a series of reorganizations in the mid-1990s were over the age of 40. The act prohibits employers from making hiring, firing and other workplace decisions based on age. The plaintiffs alleged in their suit that the company violated the act as a prima facia matter by laying off a disproportionately higher percentage of older workers than younger workers.

The Supreme Court has ruled in two key decisions what seemingly are conflicting decisions in the area of age discrimination. In one of the cases, Swierkiewicz vs. Sorema N.S., the court overruled the ruling of the U.S. Court of Appeals for the Second Circuit. The Supreme Court thus allowed a bare-bones statement of the case to stand in the face of a motion to dismiss the action because of lack of specific facts. In the second case, Adams vs. Florida Power Corp., the Supreme Court dismissed a case it heard argued last month on the type of evidence necessary to prove a violation of Title VII of the Age Discrimination in Employment Act of 1967.

In the Adams case the "disparate impact" theory was utilized in an attempt to extend its usage to age discrimination cases, whereas it heretofore had been used to aid plaintiffs who lack direct evidence of discrimination in race or sex lawsuits. In cases of "disparate impact" the plaintiff shows that a seemingly neutral policy does in fact fall much more harshly on one group than it does on another without there being a valid business reason for the disparity.

The Adams case was brought by 117 employees of Florida Power Corp. who lost their jobs at the company through a series of reorganizations and reductions in the work force in the mid- 1990s. All of the 117 were over the age of 40, the age at which the Age Discrimination in Employment Act of 1967 forbids employers to discriminate against workers "because of " age. More than 70 % of the Florida Power workers who were let go were over 40.

The Florida District Court in Tampa ruled that there could not be a class-action suit in this case because the age discrimination act required proof of intentional discrimination against each plaintiff. It was not sufficient to show that the reorganizations had a "disparate impact", and the U.S. Court of Appeals for the 11th Circuit, in Atlanta agreed.

Under the rules that apply for race and sex discrimination suits, evidence of a "disparate impact", which is often based on statistics shifts the burden of proof to the employer to justify the disparity. The age discrimination law provides that actions that would otherwise be prohibited can be justified if "the differentiation is based on reasonable factors other than age."

The Age Discrimination in Employment Act tracks exactly the wording for the core definitions in the Title VII Civil Rights Act of 1964 that dealt with discrimination based on sex or race. In 1971, the Supreme Court ruled that a Title VII violation could be proven through "disparate impact", a decision that Congress ratified when it amended the Civil Rights Act in 1991. In the oral argument held for the case Justice Ruth Bader Ginsburg asked the defendant's attorney if in fact it was "unseemly to take identical words" from one act and interpret them differently in this case.

Since the Supreme Court decision, without explanation, dismissed the Adams case we can not ascertain their exact reasoning in this matter. Thus the area of age discrimination lawsuits still has many ambiguities in it that still have to be resolved.

The legal question in this matter is therefore whether these "disparate impact" claims can be used for age-discrimination claims. These impact suits had been previously used in some civil-rights cases, involving racial, sexual and religious discrimination suits.Since it is extremely difficult for the plaintiffs in these cases to prove the discrimination directly, it becomes a matter of using the percentages to prove the discrimination.

The company claimed that the layoffs were nondiscriminatory and necessary on their part in order for them to remain competitive in the newly deregulated electric power industry. A federal judge ruled in 1999 that the workers class-action suit couldn't proceed to trial, partially because the act does not allow "disparate-impact" claims. A federal appeals court in Atlanta upheld that ruling earlier this year. The Supreme Court has accepted an appeal from this ruling. We will keep you posted on this matter.

Please also see on a related matter our article Age Discrimination and the Law

FOR AN INFORMATIVE AND PERSONAL ARTICLE ON PRACTICAL SUGGESTIONS WHEN SELECTING A NURSING HOME SEE OUR ARTICLE "How to Select a Nursing Home"

By Allan Rubin
updated August 8, 2011

http://www.therubins.com

To e-mail: hrubin12@nyc.rr.com or rubin@brainlink.com

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