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JEFFREY BROWN: Yesterday, a ruling on sex discrimination. Today, a ruling in a difficult area of age discrimination, as the court opened a new path for older workers to sue. Back with us again tonight, NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune. Welcome back.
JAN CRAWFORD GREENBURG: Thank you.
JEFFREY BROWN: This case started with a group of police officers in Jackson, Mississippi. Tell us the facts behind the case.
JAN CRAWFORD GREENBURG: Well sure. The city of Jackson, Mississippi, adopted a pay plan in 1999 that was designed, they said, to bring up the starting salaries of their police officers, to make the city more competitive with other cities in the region.
The plan gave officers with less than five years’ experience proportionately higher salary increase than it did the more experienced officers, those with more than five years of experience.
Now, obviously the more senior workers tended to be the older workers, so they got smaller pay raises. They said that was age discrimination, and they filed a lawsuit under the federal age discrimination laws.
JEFFREY BROWN: Now, they’re claiming something called disparate impact, which if I understand right, argues that even if the action was not intended to cause discrimination, it did, it qualifies as discrimination.
JAN CRAWFORD GREENBURG: That’s right. They said as older workers that this plan, this pay plan affected them adversely because of their age and that they were not getting the same kind of increases that younger workers got.
JEFFREY BROWN: Even though the company or town didn’t intend it that way.
JAN CRAWFORD GREENBURG: Right, and even though they had no smoking gun, no evidence of intentional discrimination, a more straightforward age discrimination claim. So they turn to this federal law, sued in federal court.
But a lower court threw it out, an Atlanta-based federal appeals court ruled that the federal law at issue, the Age Discrimination in Employment Act simply did not cover these kinds of claims about adverse impacts on people.
JEFFREY BROWN: But today the full court disagreed with the lower court. Justice Stevens wrote, who I note is the oldest member of the court, he wrote the opinion.
JAN CRAWFORD GREENBURG: That’s right.
JEFFREY BROWN: What did he say?
JAN CRAWFORD GREENBURG: Well, he said the history and text of this federal law showed that Congress clearly intended for it to cover these kinds of claims.
And he said that Congress also recognized that employers could have occasion to treat older workers differently, which makes age discrimination cases a little different than say sex or race discrimination cases.
JEFFREY BROWN: It’s not a blanket prohibition against treating older workers differently.
JAN CRAWFORD GREENBURG: That’s right. That’s right. And that was very important in this case and affected, at the end of the day, the outcome in this case because as Justice Stevens explained, there are times when an employer can say, “Look, we have this policy. It’s a neutral policy. It may affect our older workers differently, but we have a good reason, a good business reason for doing it.”
In the case today, it showed his point, proved his point because while the court issued this very broad, sweeping ruling that opens the courthouse door to people to file these kind of lawsuits, at the end of the day, the Justices concluded that the police officers here, the older police officers could not prevail because the city had offered a good reason for treating them differently. It said it wanted to raise the salaries of junior police officers and attract more people to the police force.
JEFFREY BROWN: This is the irony of the case. They won the legal argument, but they actually lost their case.
JAN CRAWFORD GREENBURG: Right. They won the war, but they lost the battle. That’s exactly right.
JEFFREY BROWN: There were several other opinions. Justice Scalia joined with Justice Stevens but with different reasoning?
JAN CRAWFORD GREENBURG: Yes. That was one of the fascinating things about this case. We think of this court and describe this court as narrowly divided, 5-4 on controversial issues with the five more conservative Justices joining together.
But today Justice Scalia sided with the liberal Justices to hold that older workers could file these kind of lawsuits if they were adversely affected, but he didn’t join Justice Stevens’ reasoning. He said, “I agree with the result, but not the outcome.” He said, “I’m not going to look to the history or the law or the language of the law, but I’m looking to the Equal Employment Opportunity Commission, that’s the agency that implements these discrimination laws.”
And the EEOC has long said that these kind of lawsuits should be allowed under age discrimination laws, so Justice Scalia said, “I’m deferring to them.” That was his reason for going along with the result today.
JEFFREY BROWN: I read today that this could impact some 75 million Americans, or at least that’s the number of Americans in the workforce over the age of 40. It is possible to assess the broad impact of a decision like this today?
JAN CRAWFORD GREENBURG: Well, AARP and other groups who have filed on behalf of older workers in this case said it was a huge victory for workers because it allowed claims in cases where you couldn’t find a smoking gun or blatant evidence of intentional discrimination, that that was critically important when an employer had adopted a plan or a policy that adversely affected older workers.
So this opened the door to the courthouse for them. They said that was a huge victory. But on the flip side, the business groups, the National Chamber of Litigation Center, which is the litigation arm of the Chamber of Commerce, they had come in and they said, “Okay, the court’s opened the door, but only a crack, because it’s giving employers this defense that they can make if they can show there are reasonable business reasons why they’ve adopted plan and this policy.”
JEFFREY BROWN: Now while we have you here, I want to get a legal update on the Terri Schiavo case. Last night the court reporter of appeals in Atlanta opened the small window on the legal argument which this afternoon was shut again. Can you tell us what happened last night?
JAN CRAWFORD GREENBURG: Sure. Terri Schiavo’s parents, Bob and Mary Schindler, went to the federal appeals court in Atlanta and said, “We want to file papers here. We’ve got new legal arguments. They were rejected on Friday. We want to ask this court to reconsider that.”
Now, they were supposed to have done that by the weekend, so yesterday they asked the court to basically waive the deadline and allow them to file those papers, and last night the court said go ahead, file the papers, which they did. And then today, the federal appeals court in Atlanta rejected their request to rethink the case.
JEFFREY BROWN: They used, at least one judge used some very strong language, which we showed in our News Summary, where he said, “Legislative and executive branches have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance.” That’s unusual, isn’t it?
JAN CRAWFORD GREENBURG: Well, it’s unusual to hear that from a judge at this point because obviously lawyers for Michael Schiavo have long contended, at least in the week and a half since Congress passed this law, allowing the Schindlers to step in to federal court, that that law was unconstitutional.
But up until this point, judges have not taken a look at that. They’ve just said we’re going to assume the law is constitutional for now and be that as it may, the Schindlers just have no legal case here. So today the federal appeals court judge that you mentioned was really the first judge to come in and say, “I think this law is unconstitutional.”
Now of course, that’s just one judge’s views, and certainly it doesn’t carry any precedential weight. But of course it was notable because we did have a judge weighing in on an argument that Michael Schiavo’s lawyers have certainly made since Congress passed this law.
JEFFREY BROWN: So as we sit here now, it is possible to say whether there are any further legal avenues, are there ways to go back to these courts or to the Supreme Court?
JAN CRAWFORD GREENBURG: The Schindlers, it appears now, will go to the U.S. Supreme Court tonight and ask the Supreme Court to again step in and side with them and find that Terri Schiavo’s constitutional rights have been violated – that there is not clear and convincing evidence she would not want to continue receiving food and nutrition.
But everyone that I’ve spoken with on both sides of this issue says that’s an extremely unlikely case that the Supreme Court would ever get involved in at this point.
JEFFREY BROWN: Okay. Jan Crawford Greenburg, thanks again.
JAN CRAWFORD GREENBURG: You’re welcome.