High Court Set To Take Up Pair Of Age Bias Cases

Workforce Management

As the justices convene October 1 for a new session, one of the employment law matters on the docket provides another opportunity for the bench to wrestle with workplace discrimination—this time age bias—in an era in which mistreatment is more often subtle than blatant. By Mark Schoeff Jr.

A controversial ruling on a wage discrimination case during the Supreme Court’s last term caused critics to assert that the majority ignored workplace realities.

As the justices convene October 1 for a new session, one of the employment law matters on the docket provides another opportunity for the bench to wrestle with workplace discrimination—this time age bias—in an era in which mistreatment is more often subtle than blatant.
In Sprint/United Management Co. v. Ellen Mendelsohn, the plaintiff alleges she was fired in a downsizing process prejudicial to older workers.
Mendelsohn lost her job in 2002 when the company laid off 15,000 employees. She was 51 and worked for Sprint/United since 1989. To support her claim, Mendelsohn wanted to call to the stand colleagues who believed age was the cause of their dismissal.
Such a move is typical, says William Deveney, a partner at Elarbee Thompson in Atlanta. "It allows an emotional argument to be made to the jury," he says. "That issue arises in just about every reduction-in-force case."
But the trial court didn’t allow the other employees to testify because they had a different supervisor. The 10th Circuit Court of Appeals, based in Denver, overturned the jury’s decision in favor of the employer.
The testimony of Mendelsohn’s colleagues may have been the best way to show that the layoffs unfairly targeted older employees, says Joseph Sellers, a lawyer with Cohen Milstein Hausfeld & Toll in Washington.
"Direct evidence of discrimination is increasingly rare," Sellers says. "Most often, evidence of discrimination comes from circumstantial evidence. It’s hard to claim that the experience of other workers who were subject to the same [layoff] policy is irrelevant."
Charles Craver, professor of law at George Washington University, says the Sprint case will be a difficult one for the court.

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