Age Discrimination Hits Supreme Court Can federal employers punish employees who complain about age discrimination? Judges hears arguments Tuesday on this old problem.
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Age Discrimination Hits Supreme Court

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Age Discrimination Hits Supreme Court

Age Discrimination Hits Supreme Court

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MADELEINE BRAND, host:

In this country, a busy day today at the Supreme Court. The justices turned down without comment a challenge to President Bush's warrantless wiretapping. They also heard arguments in a case about age discrimination.

With us now is our legal analyst, Slate.com's Dahlia Lithwick. She was at the Supreme Court earlier today. And, Dahlia, I understand this is just one of several age discrimination cases before the court this term. Why so many?

Ms. DAHLIA LITHWICK (Legal analyst, Slate.com): It's a good question, Madeleine. I think that today's argument really showcased two little sort of boom-lets that we're seeing Supreme Court jurisprudence of late.

One is there's a big rash of age discrimination cases. There's going to be five cases this term that involved claims of age discrimination. I don't think that's deliberate. It just reflects a general trend, I think, of one the law is unsettled. We're trying to work it out. And there are just a lot more older workers in the workplace and these cases are arising.

The other little boom-let has arisen over retaliation cases. This is a case in which the question is not that someone was discriminated against on the basis of a minority status. They were discriminated against, so they say, because they complained. So these are sort of whistle-blower cases, slightly different from standard discrimination cases. And this is another area in which the Supreme Court has shown an unusual interest this term.

BRAND: And today's case involved a postal worker. So give us a summary of the arguments.

Ms. LITHWICK: She was a postal worker in Puerto Rico, and she claimed that a position that she wanted had been given to a younger, less experienced worker. So, as I said, she claimed both age discrimination and retaliation, that once she started squawking about it she was persecuted for that.

She lost in the lower courts, Madeleine, because the federal age discrimination statutes explicitly protect private sector employees from retaliation. They do not explicitly protect federal government workers. And so this case did not get her anywhere. And the question for the Supreme Court was whether to, in effect, extend the federal statute so that it mirrors the protections that are given to folks in the private sector.

BRAND: And what did her former employer say?

Ms. LITHWICK: Her former employer, the post office, said if Congress had intended to include federal workers with these protections they would've written the statute that way. So, so long. And they - the Solicitor General's office today argued that age discrimination is, quote, "materially different from sex and gender discrimination." And Congress just was somewhat less concerned about it.

BRAND: Now, all nine justices would be covered by any age discrimination law, I suppose, if they were out in the real world. So did you get a sense that they were sympathetic to her arguments?

Ms. LITHWICK: It was interesting, Madeleine. You saw very, very typical the sort of more conservative block of justices more sympathetic to the government's position. The more liberal justices - and I should add the older justices - tended to be more inclined to expand the civil rights statutes.

Although, they were equivocal about it, it was by no means a sharp right-left divide. The person who, as you know, always is in the middle, Justice Kennedy, did not speak today. And, as often is the case, his vote may be the only game in town. He did not tip his hand today.

BRAND: Okay. Quickly, Dahlia, let's go to that other case about the warrantless wiretaps. What does this mean that they turned down without comment a challenge to that?

Ms. LITHWICK: It essentially means that this is one more roadblock that the ACLU, who brought the suit, is going to face getting - sort of smoking out what it is that's happening with this Bush administration wiretapping program, because their entrance to the court - yet again - is blocked today by the Supreme Court.

BRAND: Dahlia, thank you.

Ms. LITHWICK: My pleasure, Madeleine.

BRAND: That's Dahlia Lithwick. She's our legal analyst and also legal analyst for Slate.com.

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