[ql06] Re: PUBLIC: remedies and judicial activism
- From: Stephen Kennedy <2srk@xxxxxxxxxxxxxxxx>
- To: ql06@xxxxxxxxxxxxx
- Date: Thu, 13 Nov 2003 17:41:59 -0500
At 05:08 PM 13/11/2003 -0500, you wrote:
>Comment: Guys, the news below refers to what we=92ve discussed today at
>Corbett=92s class. Although this is an American case, it involves age
>discrimination and the question regarding judicial activism.
>
>
>New York Times
>Justices Mull Twist in Law on Age Bias
>
>November 13, 2003
>By LINDA GREENHOUSE
>
>WASHINGTON, Nov. 12 - When Congress made it illegal 36
>years ago for employers to discriminate on the basis of
>age, it was clear that older workers were protected from
>discriminatory treatment that favored those who were
>younger. The question in a Supreme Court argument on
>Wednesday was whether the Age Discrimination in Employment
>Act also meant the reverse: if Congress in addition meant
>to prohibit policies that favor older workers over younger
>ones.
>
>The plain language of the statute suggests one
>interpretation, while the context in which the law was
>enacted in 1967 suggests the opposite. An employer shall
>not discriminate against someone "because of such
>individual's age," the law reads, without specifying "older
>age" or "younger age." The law's protection begins at age
>40 and has no upper limit.
>
>"The real issue here is whether this court should add an
>additional element" and treat the law as if it read
>"because of their older age," Mark W. Biggerman, a lawyer
>for a group of younger workers at General Dynamics plants
>in Ohio and Pennsylvania, told the court. He urged the
>court to avoid a judicial rewriting of the statute.
>"Congress's goal here was to make age a neutral factor in
>employment," Mr. Biggerman said.
>
>In 1997, General Dynamics negotiated an agreement with the
>United Automobile Workers eliminating medical benefits that
>current employees would have received in retirement. The
>agreement allowed an exception, though, for employees who
>turned 50 by July 1 of that year. Some 200 workers between
>the ages of 40 and 50 filed suit on the ground that the new
>plan, which they were too young to benefit from,
>discriminated against them because of age.
>
>The Federal District Court in Cleveland dismissed the suit,
>but the United States Court of Appeals for the Sixth
>Circuit, in Cincinnati, reinstated it on the ground that
>the law's protection ran in both directions. The Sixth
>Circuit was the first appeals court to interpret the law to
>permit a lawsuit of this kind.
>
>The company appealed to the Supreme Court, warning that the
>consequences of this new interpretation would prove highly
>unsettling to management and labor alike. Indeed, General
>Dynamics came to the court with the support of the
>A.F.L.-C.I.O. and several individual labor unions, as well
>as the United States Chamber of Commerce and other groups
>representing management.
>
>The age discrimination act "should not be stretched" to
>invalidate a plan aimed at protecting the interest of older
>workers, the company's lawyer, Donald B. Verrilli Jr., told
>the court.
>
>"The truth of the matter," he said, "is that the word `age'
>is something of a chameleon that has different connotations
>depending on the context." In the current context, Mr.
>Verrilli said, if Congress had really meant to prohibit
>"youth discrimination," it was "exceedingly strange" to
>have chosen 40 as the age at which the law's protection
>begins. Rather, it is at age 40 that people begin to have a
>problem in being perceived as too old, he said.
>
>Most of the justices appeared persuaded by Mr. Verrilli's
>argument, even Justice Antonin Scalia, perhaps the
>judiciary's best-known proponent of interpreting statutes
>according to their precise terms.
>
>"So what happens is that a piece of legislation that
>everyone thought was meant to aid older workers, especially
>at the end of their working careers, ends up harming them,"
>Justice Scalia said with evident disapproval to Mr.
>Biggerman, the plaintiffs' lawyer.
I never thought I'd see the day when I agree with Antonin Scalia, but I do
on this one. Although the legislation may have been crafted in response to
discrimination against older workers, it's no "stretch" to say the plain
intent is to eliminate age as a ground for discrimination.
It's also a sad day when the once-feared UAW is so powerless it agrees to
sell half its membership down the river to protect the rights of the other
half. It then compounds the insult by sending union leaders to court to
argue management's case. Pathetic!
Say what you like about CAW President Buzz Hargrove (and I've said some
nasty things in my time), he's got more self-respect than that.
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