In Smith v. City of Jackson, older police officers in Jackson, Mississippi, are challenging a city pay-raise plan that allegedly favored younger officers.
The federal civil rights laws that cover other types of discrimination, such as racial discrimination, generally protect employees from discrimination, regardless of whether the employer intended to discriminate or not. The debate coming before the high court is about whether the age-discrimination law should be interpreted similarly—something called "disparate impact," paving the way for age-discrimination cases based on unintentional discrimination.
Vincent Alfieri is the leader of the labor/employment practice for the international law firm Bryan Cave. "On one hand," Alfieri says, "this is a technical, lawyerly issue. On the other hand, it has a real impact." If the court rules against employers, he says, "this will be at the right at the top of the things they have to concern themselves with."
Alfieri says that the decision could affect all aspects of the employment process, from hiring to firing to benefits. But he says that it will most affect the termination process, forcing employers to more carefully weigh the impact of both "one-off" terminations as well as mass layoffs on older employees.
The courts have given mixed signals on the issue over the last decade. The Supreme Court hasn’t issued a definitive ruling on it. Some appeals courts have ruled that disparate impact should be considered as part of age-discrimination cases, while other courts have disagreed.