This New York Times
Workers who sue their employers for age discrimination need not prove that the discrimination was intentional, the Supreme Court ruled on Wednesday. Adopting a pro-worker interpretation of the federal law that prohibits age discrimination in employment, the 5-to-3 decision held that employees can prevail by showing that a policy has a discriminatory impact on older workers, regardless of the employer’s motivation. Somehow I doubt Linda Greenhouse can back up that phrase. Employers are likely to fight back by hiring fewer older workers, making the decision counterproductive, as Mickey Kaus points out: And they say blogs are stupid: Here is the first sentence uttered by Brian Williams on last night’s NBC Nightly News: Age bias. A big win for millions of workers over 40. The US Supreme Court just made it easier to sue the boss for age discrimination. Well, it may be a “win” for particular plaintiffs. But is it a “win” for “millions of workers over 40”? That would seem to depend on many factors, including whether employers stop hiring workers over 40 for fear of later getting sued for age discrimination, or whether American corporations, deprived of the ability to lure new, younger, cheaper, more energetic workers (see. e.g. GM), lose out to foreign competition, causing their over-40 employees to lose their jobs. Maybe the net result of the ruling will be a transfer of income from under-40s to over-40s and a net increase for the latter group, but it’s a highly complex and controversial claim. … NBC’s hardly the first to buy into the facile plaintiff’s lawyer’s notion that a “win” in a particular lawsuit for a particular group of people means a “win” in the larger sense–as if litigation were costless and free of perverse consequences, as if damage awards are a bonus that materialized out of the ether. But it’s relatively rare to see this hack fallacy become the actual lede of a newscast. Talk about a blind spot — this is almost painfully reminiscent of the reporters who treat “campaign finance reform” as a neutral term. In fact, if you read the Greenhouse story, you’ll see that there’s no mention of potential second order effects of employers trying to protect themselves against legal claims by hiring fewer older workers. This is all you get: While it remains to be seen whether employees invoking these claims will prevail in substantially greater numbers, the decision will almost certainly result in more such cases going to trial, rather than being dismissed at the early stages on summary judgment. That prospect, in turn, will require employers to examine any policies that have different impacts on workers of different ages and to make sure that they can justify the policies on a basis other than age It’s a pure legal process perspective. And, shockingly enough, Greenhouse holds a law degree and is a career legal reporter. Of course lawsuits help people — it’s obvious!