Supreme Court Makes it Easier To Sue for Age Discrimination

Proving that a company fired an older worker because of bias can be very difficult. Often there is a lack of convincing proof that the worker was terminated specifically because the employer had a bias against older workers. Not many employers say in front of a room full of witnesses, "We're getting rid of Joe because he's old."

But recently the U.S. Supreme Court expanded the rights of older workers. The court said companies can be sued under federal law when their policies or practices have a disproportionate effect on workers 40 or older - regardless of whether the employer intended to discriminate against them.

These so-called "disparate impact" claims make it easier to prove age bias, although the court did place limitations on this type of lawsuit.

To prove a disparate impact, the court said workers must show that a specific employment practice or requirement adversely affected older workers. For example, it's not enough to show only that layoffs disproportionately affected older workers as compared to younger workers. Instead, plaintiffs have to show that a specific policy unfairly affected older workers.

Also, a company can defend itself if its policy had some reasonable justification that had nothing to do with age.

Example: Suppose a company requires all employees to demonstrate a certain level of computer skills. Such a policy might well have a disparate impact on older workers who are less familiar with computers. Of course, if the employees' jobs require using computers, then the rule might be justified. But if the

employees' jobs involve manual labor and computers aren't really necessary, then the rule might be illegal.

Companies could also get into trouble if they require employees to meet certain tests for strength, agility or eyesight that aren't strictly necessary for the job.

In the Supreme Court case, the City of Jackson, Miss. found that its starting salaries for police officers were less than the regional average, so it adopted a plan that gave new employees proportionately bigger raises than more senior employees. The senior employees claimed that this policy had a disparate impact on older workers.

However, the Supreme Court said that the workers hadn't identified a specific practice that had hurt them, as opposed to a general salary plan. Also, the court said that raising starting salaries to the local average was a reasonable justification for the plan.

Future lawsuits will help define what is a "reasonable factor other than age," and what is required to demonstrate a "specific" employment policy or practice.

Woman Not Pregnant But Can Still File Discrimination Claim

Even though a woman wasn't pregnant, she could still make a pregnancy discrimination claim.

So said a federal appeals court recently, which indicated that a woman's potential to have children is enough to satisfy the federal Pregnancy Discrimination Act.

The woman, an obstetric nurse, resigned due to complications with her pregnancy. After the baby was born, she then applied with her former employer for a part-time nursing position, but her application was denied.

She sued, alleging that she had been asked by the employer's personnel

manager whether she was pregnant again, or intended to have more children. She also claimed to have been told by the personnel manager that her former supervisor would not rehire her because of complications in scheduling caused by her past pregnancy.

The employer argued that the plaintiff was not protected by the law because she was not pregnant at the time her job application was denied.

But the federal appeals court said the woman could file a claim because the federal law prohibits an employer from discriminating against a woman because of her capacity to become pregnant.

Office Romances Can Be a Problem

The recent firing of Boeing's CEO for having an affair with an employee has brought renewed attention to the issue of office romances.

Romantic relationships between a supervisor and a subordinate are generally frowned upon in the workplace. More and more companies have created policies forbidding such affairs because they can lead to many problems.

One is that a relationship may sour and lead to a charge of sexual harassment. Employers also worry that the workers involved may be less productive on the job. And other workers who are aware of the relationship may perceive favoritism, which can undercut workplace morale.

While most policies prohibit supervisors from dating a direct subordinate, they are generally silent on other romances. But even those relationships can spell trouble, especially if a company believes the relationship clouds the judgment of

those involved or reflects badly on the company.

The firing of Boeing's CEO is an example of a company deciding a consensual relationship between two executives conflicted with the company's goals. The CEO was asked to resign because his extramarital affair was at odds with Boeing's effort to implement a code of ethical conduct.

The line between employees' business and personal lives is often unclear. Some employees have sued their companies after being terminated because of an office romance claiming a violation of a right to privacy.

Another emerging trend involves companies asking employees involved in romantic relationships to sign an affidavit saying the relationship is consensual. These so-called "love pacts" are aimed at minimizing liability risks if the office affair sours and the spurned party - often a woman subordinate - files a sexual harassment claim.