Supreme Court age discrimination decision: right result, wrong reasoning
Yesterday, the Supreme court decided General Dynamics Land Systems, Inc. v. Cline, holding that the Age Discrimination in Employment Act of 1967 (ADEA) [link to statutory text] does not prohibit age discrimination against younger employees (preferences for older employees), even between employees within the protected 40-or-over age group.
For quickie news story on the case, see CNN/Money (Reuters): “Top court rejects age bias suit; Supreme Court rules law barring age discrimination doesn’t allow for suits by workers in their 40s who claim older workers have been treated more favorably”:
By a 6-3 vote, the high court handed a victory to a General Dynamics Corp. subsidiary which argued the law does not provide for such reverse discrimination lawsuits.
Justice David Souter wrote in the court’s majority opinion that the law’s text, its purpose, its history and its relationship to other laws show it was not meant to stop an employer from favoring an older employee over a younger one. . . .
An agreement in force until mid-1997 provided full health benefits to all employees who retired with 30 years of seniority. The company and union then negotiated a new collective bargaining agreement which offered retiree health benefits only to those at least 50 years old on July 1, 1997.
About 200 present or former employees in their 40s sued and said the limitation amounted to illegal age discrimination. . . .
The court in the opinion by Souter rejected that interpretation.
Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy dissented.
“This should have been an easy case,” Thomas wrote, adding that the law’s plain language mandates that younger workers should be able to sue for discrimination that favors older workers.
He said the law “clearly prohibits discrimination because of an individual’s age, whether the individual is too old or too young.”
See also “High Court Backs Benefits Based on Age; Younger Workers’ Bias Claim Rejected”
by Kirstin Downey, Washington Post Staff Writer, adding some significant points.
First, a quick summary of the conflict between majority and dissent:
In the opinion for the court, . . . Souter wrote that “it is beyond reasonable doubt” that the intention of the [ADEA] . . . was to protect older workers, not younger ones — even if the older workers were treated better and the younger workers were 40 or older. He cited congressional testimony from the 1960s that he said showed the law’s framers were concerned mainly about diminishing job opportunities for older workers, and that age discrimination is “naturally understood to refer to discrimination against the older.”
[D]issenting [with Kennedy], Thomas, a former chairman of the EEOC, wrote that the “plain language of the ADEA clearly allows for suits brought by the relatively young when discriminated against in favor of the relatively old.” . . . . In a separate dissent, . . . Scalia wrote that the EEOC, the agency charged with enforcing discrimination laws, had found it “unlawful” to discriminate by “giving preference because of age between individuals 40 and over.”
Next, some important practical implications:
The Post article says the “decision [was] applauded by corporate groups as necessary to preserve some early retirement plans,” which may provide enhanced benefits to older workers.
This article also suggests that because this decision makes it clear that it is not unlawful discrimination to selectively curtail retiree health benefits as General Dynamics did, thus avoiding disturbance to the expectations of those closest to retirement, more employers may follow this course to help stem the tremendous cost of retiree health benefits. This will worsen America’s health insurance crisis.
The amicus curiae (friend of the court) briefing list reveals some strange bedfellows, and the results reached by the court’s “liberals” and “conservatives” in a certain sense reveal a role reversal.
The Dept. of Justice backed the EEOC in favor of a more expansive — if “plain language” — reading. The dissent adopted this more expansive interpretation which is “liberal” in that it would have allowed many more age discrimination claims.
On the other side, the liberal Justices used freewheeling statutory interpretation (see below), but conservatively narrowed the range of possible age claims. Their position was supported by the AFL-CIO, UAW, NEA, Teamsters Health and Welfare Fund, who found themselves on the same side of a major employment issue with the following employer- and business-advocacy groups: Equal Employment Advisory Council, HR Policy Association, Chamber of Commerce of the United States, American Benefits Council, and Erisa Industry Committee. Curiously, the AARP filed a brief “in Support of Neither Party.”
I found it somewhat troubling that the Supreme Court majority followed a meandering logical path, rather than a disciplined statutory construction paradigm.
I probably would have reached the same result, but would have started by expressly addressing whether and how the discrimination clause itself (prohibiting “discriminat[ion] … because of [an] individual’s age,”) is ambiguous. If so, I would have asked whether the ambiguity could be clarified by reference to other language of the statute or a comparison to language used in other federal employment laws — all before one word about legislative history.
Instead, the Court gives these first two inquiries short shrift in the following two sentences before plunging headlong into legislative history — the statutory interpretation tool of last resort:
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 Congress’s interpretive clues speak almost unanimously to an understanding of discrimination as directed against workers who are older than the ones getting treated better.
The next eight paragraphs sandwich one brief paragraph about another, highly relevant, section of the statute — the introductory statements of purpose and findings — between extensive discussion of much less relevant, if not improper, considerations such as: a preliminary study by the Secretary of Labor, a presidential message to Congress, testimony at House and Senate hearings, “common facts,” “common experience,” a “commonplace conception of American society in recent decades,” and what is “naturally understood.”
Finally, the Court comes to the most important, if not dispositive, textual cue — the limitation of the protected class to those 40 and up:
This same, idiomatic sense of the statutory phrase is confirmed by the statute’s restriction of the protected class to those 40 and above. If Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under 40. . . . Thus, the 40-year threshold makes sense as identifying a class requiring protection against preference for their juniors, not as defining a class that might be threatened by favoritism toward seniors.
Even here, this analysis is interspersed with unnecessary discussion of common sense experience, a quote from a House report, and a statement of the Secretary of Labor in a Senate hearing (last time I checked, he/she doesn’t vote on legislation) [I deleted these portions].
Then the Court finally looks at judicial interpretations, as if this were an afterthought. It cites three Supreme court opinions, none of which is particularly on point or persuasive. In concluding, it makes the following not insignificant point:
The Courts of Appeals and the District Courts have read the law the same way, and prior to this case have enjoyed virtually unanimous accord in understanding the ADEA to forbid only discrimination preferring young to old. . . . The very strength of this consensus is enough to rule out any serious claim of ambiguity, and congressional silence after years of judicial interpretation supports adherence to the traditional view.
Unfortunately, this potentially valid application of a statutory interpretation principle is weakened greatly because: 1) only two Court of Appeals decisions are cited, and the Court took the case because a third one disagreed; 2) congressional inaction is much more impressive if it follows a Supreme Court opinion directly on point, which it didn’t; and 3) it is improperly treated as much less significant than comments of the Secretary of labor, common sense, etc.
The Court not only relies on improper considerations, it also illustrates precisely the trouble with legislative history — that it discloses the thinking of too many different people throughout a lengthy deliberative and politically adversarial process and thus is often rife with inconsistencies and conflicting positions. The majority says:
The record of congressional action reports a colloquy on the Senate floor between two of the legislators most active in pushing for the ADEA, Senators Javits and Yarborough. Senator Javits began the exchange by raising a concern mentioned by Senator Dominick, that “the bill might not forbid discrimination between two persons each of whom would be between the ages of 40 and 65.” . . . Senator Javits then gave his own view that, “if two individuals ages 52 and 42 apply for the same job, and the employer selected the man aged 42 solely … because he is younger than the man 52, then he will have violated the act,” and asked Senator Yarborough for his opinion. . . . Senator Yarborough answered that “[t]he law prohibits age being a factor in the decision to hire, as to one age over the other, whichever way [the] decision went.”
There’s no indication Javits disagreed. So here we have two of the most important proponents of the ADEA agreeing on this point (and with the position taken by the dissent). Read for yourself the Court’s effort to dodge the bullet on this one (Section III.B.). I’m not persuaded.
It goes on, but it’s getting late. Suffice it to say that I agree with the majority result because the restriction to a 40-and-up protected class is indicative of a concern only with discrimination against older persons in favor of younger persons, but find that the Thomas-Kennedy dissent is a textbook model of clear statutory analysis in comparison to the majority’s meandering:
Sphere: Related ContentThe starting point for [the] interpretation of a statute is always its language, . . . and “courts must presume that a legislature says in a statute what it means and means in a statute what it says there . . . . Thus, rather than looking through the historical background of the . . . ADEA, I would instead start with the text . . . itself, and if the words of [the] statute are unambiguous, my judicial inquiry [would be] complete. . . .
. . .
The parties do identify a possible ambiguity. . . .
. . .
This plain reading of the ADEA is bolstered by the interpretation of the agency charged with administering the statute.
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