Saturday, March 6, 2004

Age bias rule has a new tenet

By John Byczkowski
The Cincinnati Enquirer

Workers over 40 years old can sue employers for age discrimination even if they're replaced by workers who are also over 40, the Ohio Supreme Court said in a 4-3 decision this week.

Before Wednesday's decision, workers who had been replaced with younger workers could sue only if their replacements were younger than 40. The court, in Coryell v. Bank One Trust Co., threw out that standard, saying the replacements must be "substantially younger."

James Coryell, a 49-year-old worker in Columbus was replaced in 2001 with a person 42 years old. He filed suit for age discrimination, but the trial court threw the case out because the worker who replaced him was older than 40. The Franklin County Court of Appeals agreed.

The case is important because federal law allows plaintiffs in age discrimination cases to seek only back pay as damages. Ohio law allows for punitive damages in age-discrimination cases, so Cincinnati plaintiffs' lawyer David Torchia said Ohio courts might become the venue of choice for these kinds of cases.

Justice Maureen O'Connor, writing for the majority, said it will be left to the courts to decide in each case what "substantially younger" means. Cincinnati lawyer Bob Steinberg said there's plenty of case law on this: A difference of 10 years is almost always "substantial" but seven years isn't always.

"From a practical standpoint, it makes some sense," Cincinnati lawyer Mike Manzler said. It clears the way, for instance, for workers in their 50s to sue in Ohio for discrimination if they're replaced by workers in their 40s, as allowed in federal courts. On the other hand, "it replaces a clear standard with a fuzzy standard. It creates uncertainty for employers," he said.

Justice Evelyn Lundberg Stratton, in her dissent, said Ohio courts for 20 years had operated under the old standard, and the Ohio General Assembly left it alone despite many opportunities to change it. If a change was needed, "then this change should be accomplished by the General Assembly, not the judiciary," she wrote.


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