Age Discrimination Decision Could Affect Maine Employers

Bernstein Shur Attorney Warns Employers of the Pitfalls

A recent U.S. Supreme Court ruling regarding workers over 40 could affect Maine employers, Linda McGill, a leading labor lawyer and employment law attorney with Bernstein Shur, said today.

The decision, Smith v. City of Jackson, says that policies employers institute that have an adverse affect on older workers could make them liable to discrimination claims.

“For the first time, the Court held that an ADEA claim may be filed not only when an employer intentionally discriminates against an older worker, but also when an employer makes a business decision or adopts a policy or practice that, though neutral on its face, has a disproportionately adverse impact on older workers,” McGill said.

Workers over 40, who are covered under the ADEA, currently make up over 40 percent of the U.S. work force. Almost 50% of Maine’s work force is over 40. The state has the oldest population in the U.S.

Businesses with fewer than 20 employees are not covered by federal age laws. However, the Maine Human Rights Act, which applies to virtually all Maine employers, protects all workers, regardless of age, from age-based discrimination, McGill said. “Since the MHRA is usually interpreted consistent with federal discrimination law, it is likely that disparate impact claims will be recognized under state law. In short, the new ruling affects almost every Maine business that has one or more employees.”

Justice John Paul Stevens noted in the decision that “age not uncommonly has relevance to an individual’s capacity to engage in certain types of employment”. Age may also correlate closely with non-discriminatory factors such as higher pay and fringe benefits.

Disparate impact claims are most likely to be lodged when an employer’s decision or policy affects a significant number of employees, such as when an employer makes changes in the wage scale, modifies employee benefits, makes reductions in the work force, or changes promotion policies.

“Maine employers would be wise to test in advance the impact of their personnel decisions on workers over 40 compared with those under 40,” she said. “Supervisors should be trained to avoid actions or conduct that could support a claim of intentional age discrimination and to prevent age-based harassment of older workers.

Linda McGill, a resident of Freeport, represents employers on all workplace law issues, including matters under federal and state labor laws, union management negotiations, discrimination laws and claims prevention.

Bernstein, Shur, Sawyer & Nelson is one of northern New England's largest law firms with more than 80 lawyers in offices in Portland and Augusta, Maine and in Manchester, N.H. The firm provides legal services in all other major practice areas, including corporate and commercial law, litigation and trials, municipal and governmental affairs, labor and employment law, education law, construction law, and tax and estate planning. The firm also has an active practice in bankruptcy, health law, environmental law, technology and commerce, legislative law, intellectual property, public utilities, and other regulated industries. For more information, visit the Bernstein Shur web site at www.bernsteinshur.com.

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