|Jottings By An Employer's Lawyer|
Tuesday, February 24, 2004
Supreme Court - No Reverse Discrimination Under the Age Act
In the abstract, the phrase is open to an argument for a broader construction, since reference to age carries no express modifier and the word could be read to look two ways. This more expansive possible understanding does not, however, square with the natural reading of the whole provision prohibiting discrimination, and in fact Congresss interpretive clues speak almost unanimously to an understanding of discrimination as directed against workers who are older than the ones getting treated better."The most important aspect of the case is that it was a train wreck that was avoided, although three of the justices would have let the crash occur, founded on the literal wording of the statute. As I had predicted, it was Justice Thomas who led the way in this regard:
This should have been an easy case. The plain language of 29 U. S. C. Â§623(a)(1) mandates a particular outcome: that the respondents are able to sue for discrimination against them in favor of older workers. The agency charged with enforcing the statute has adopted a regulation and issued an opinion as an adjudicator, both of which adopt this natural interpretation of the provision. And the only portion of legislative history relevant to the question before us is consistent with this outcome. Despite the fact that these traditional tools of statutory interpretation lead inexorably to the conclusion that respondents can state a claim for discrimination against the relatively young, the Court, apparently disappointed by this result, today adopts a different interpretation. In doing so, the Court, of necessity, creates a new tool of statutory interpretation, and then proceeds to give this newly created social history analysis dispositive weight. Because I cannot agree with the Courts new approach to interpreting anti-discrimination statutes, I respectfully dissent.We also had the unusual specter of Justice Scalia arguing contrary to the majority that the EEOC's view of the ADEA was proper.
This is a difficult case for those, like me, who believe that judicial activism as that term is frequently used is not a good thing, but who also squirm at the thought of a different outcome than the one obtained by the majority in this case.