Fighting Age Bias the Old Way

When judges start using the word "reasonable," watch out. It's a waffle word that usually means, "Let the courts decide an issue case by case."

A good example is last week's ruling by the Supreme Court that interpreted a 1967 federal law on age discrimination.

The high court discovered a new meaning in a vague law that the lower courts couldn't see - namely, that a business policy that adversely affects older workers is legal if it is "based on reasonable factors other than age." In other words, older workers who sue for discrimination can win only if their company fails to prove to a judge that its policies weren't aimed at harming those workers.

In fact, the court decided 5-3 in a case brought by senior police officers in Jackson, Miss., that the city was right to give higher raises to junior officers in order to become more competitive with other police departments in recruiting. That was "unquestionably reasonable," Justice John Paul Stevens wrote.

Yes, but now what?

Before this, courts decided that workers had to prove their employer intended to discriminate. Now workers can sue if a company policy has a "disparate impact" on older workers - but then the courts will decide if that policy is somehow "reasonable."

The high court's decision is well-meaning. No older worker should be pushed out the door just because of age or high salary. But the court has created the potential for a flood of lawsuits that, just in litigation costs alone, could push smaller firms out of business. Congress must revisit the 1967 law to put the fine print on what companies can and cannot do.

Half the workforce is now over 40 - the age when this law kicks in. Both workers and employers deserve to know the limits of this law, not case by case, judge by judge.