Supreme Court and EEOC grapple with age discrimination questions

The aging federal workforce is a hot topic, but much of that discussion focuses on recruiting and retaining the next generation of younger employees. Recently, however, the treatment of older federal workers has generated more interest as a result of a Supreme Court decision and a proposed change by the executive branch to the standard for determining age discrimination.

In Gomez-Perez v. Potter, Postmaster General, the Supreme Court ruled 6-3, on May 27, that federal employees could sue their agencies if they were retaliated against for complaining about age discrimination. That decision, written by Justice Samuel Alito with Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas dissenting, expanded the scope of the 1967 Age Discrimination in Employment Act. The Bush administration had argued that Congress intended for the Civil Service Commission to handle retaliation claims as a category distinct from discrimination charges.

At the time, National Treasury Employees Union President Colleen M. Kelley praised the decision, calling it "a very welcome departure from a court that is often conservative with respect to federal employee rights." She said recognizing that retaliation was a form of discrimination -- which the majority in Gomez did -- as opposed to a separate offense, gave workers firmer ground to stand on when they file discrimination claims.

While Gomez expanded older federal employees' rights to fight retaliation, a proposed standard for proving age discrimination could set a higher threshold for demonstrating that discrimination occurred in the first place.

On May 30, the comment period ended for a proposed Equal Employment Opportunity Commission rule that would set up a new test for determining whether age discrimination occurred. That draft rule was inspired by the 2005 Supreme Court decision Smith v. City of Jackson. Currently, employers can adopt policies that have an effect on the members of one age group more than another on the grounds of "business necessity" as long as that policy limits its impact on the affected age group as much as possible.

The proposal would require an employer to demonstrate that a practice was based on a "reasonable factor other than age." That standard places the burden of proof on employees to identify the practice that produces the discriminatory effect, but also requires the employer to demonstrate that factors other than age prompted the practice.

EEOC has not decided yet whether to adopt the rule.

NTEU submitted comments on the proposed regulation, arguing that "a practice which discriminates against older employees must be objectively reasonable when viewed from the standpoint of a reasonable employer," and must be aimed at meeting a legitimate business need.

In particular, NTEU called attention to the need for sensitivity regarding age in pay decisions. The union won an arbitration decision striking down the Securities and Exchange Commission's pay-for-performance system last September on the grounds that the system adversely affected employees age 40 and older.

"The employer must show that managers responsible for making pay decisions have received adequate training and guidance on the application of subjective standards," the union wrote.