A recent Supreme Court ruling removing the need to prove an employer intentionally discriminated on the basis of age could bring more lawsuits, but it is not likely to change the outcome of those suits, at least in California. The new federal statute merely ups the ante for those states that did not have particularly stringent age discrimination laws or had none at all. But in California the law has for some time placed greater burden on employers in these cases, even more than the new federal ruling requires. As a result, employers can expect to be held to the same standards they have been expected to meet for years, despite the changes at the federal level. “If you talk about California employers in particular, I don’t think the practical impact is that significant,” said John Manier, senior counsel specializing in employment law at Ballard Rosenberg Golper & Savitt LLP in Universal City. “California law is unchanged by this decision.” What the Supreme Court decision said is that employers can be found to have discriminated on the basis of age if a policy or procedure adversely affected the employees aged 40 and over in that company, even if the reason for the policy or procedure had nothing to do with age. “The way you prove an adverse impact case is through statistics,” said Richard S. Rosenberg, partner at Ballard Rosenberg Golper & Savitt. “So let’s say I’m a casino, and I’m looking to hire cocktail servers, and in my hiring only 2 percent of applicants over the age of 40 become cocktail servers, whereas 90 percent under 40 became cocktail servers. The government would argue it’s not historical accident. Your statistics are telling a story. From a statistical perspective, you have hit one group harder than another.” Catching up Federal law had previously required that a plaintiff provide direct evidence that the employer meant to apply different treatment because of the age of the employee, but the law, as it applied to age, was a step behind other civil rights legislation that did allow cases based upon statistical impact or so-called adverse impact. The recent Supreme Court ruling, in a way, was playing catch up to the other civil rights legislation for other protected groups. But California courts have long considered adverse impact in age discrimination cases, and since the bar has always been higher here, the new federal ruling makes little difference to how cases will turn out. Indeed, California law is more onerous, even as compared with the federal revisions. Under federal guidelines, an employer must show that its decision was made based upon reasonable factors. Let’s say, for example, that a department was laid off because the company decided to outsource that function instead for reasons of cost efficiency. But in California the decision must be defensible as a necessity, a far more difficult burden of proof. “In Calfiornia, once you prove the disparate impact, the employer has the burden of proof, and they have to prove not just that it was a reasonable factor, they have to prove a business necessity,” said Manier. “In those cases, the court will second guess the employer (and ask) were there not different ways you could have used?” What may change, however, is the number of age discrimination cases brought in California and elsewhere. “When cases like this are on the front page of the newspaper, it reminds people,” said Reed Schaper, a partner at Curiale, Dellaverson, Hirschfeld & Kraemer LLP, a law firm that often works with Professionals in Human Resources Association, a trade and education group for HR practitioners. “I think it will spur a number of cases that are opportunistic.” Cases down Last year, 17,837 age discrimination claims were filed with the Equal Employment Opportunity Commission, the federal agency that oversees age discrimination and other complaints. That was down from 19,124 claims filed in 2003. But attorneys note that news headlines often encourage lawsuits. “After 9/11 happened, there were an increased number of claims based on national origin,” said Sue Bendavid-Arbiv, chair of the employment law department at Lewitt Hackman Shapiro Marshall & Harlan LLP in Encino. “I think there is a heightened risk. At the same time, I think employers are going to be made more aware.” Bendavid-Arbiv and others also noted an increase in claims is likely due simply to the aging of the workforce and the current economic climate that is fostering a range of cost-cutting policies. “I can’t say that my clients or I are any more worried, but it certainly has the effect of many more age discrimination claims being brought, especially with an aging baby boomer population,” said Dana Kravetz, a partner with Encino-based Michelman & Robinson LLP. “All I can do is keep force-feeding clients preventive medicine. Don’t make the decision without consulting an attorney.”
