In April 2005, the Supreme Court opened the door to more age discrimination lawsuits with its decision in Smith v. City Of Jackson. The Court ruled that an employee age 40 or over can sue an employer over a policy or action that had an unintentional adverse impact on the employee because of age. The Court’s opinion –and all the media attention– is almost certain to increase the volume of age discrimination claims.
Although Smith opens the door for more age claims, the Court described various defenses for an employer. For example, a policy that has an adverse impact on older workers is still lawful where the differentiation is based on reasonable factors other than age. This defense recognizes that age may limit an employee’s capacity to perform certain duties such as strenuous labor.
Now is a good time for employers to re-visit certain policies that could have an adverse impact on employees older than 40. For example, a policy that requires applicants to demonstrate computer literacy may have an adverse impact on older workers unless the employer can demonstrate that it is a reasonable job-related requirement. Or, a layoff based on who is the highest paid may have an adverse impact on employees over 40.