Ageism comes before an aging court

Sometime next year, the Supreme Court justices (average age: 70) will rule on an age discrimination case that stands to make even this conservative-leaning court appear rather bleeding-hearted liberal, at least in one regard.
The justices heard arguments in a case last week weighing how much protection from job bias older workers are entitled to under law. The case was brought by a group of Jackson, Miss., police officers alleging bias when their younger counterparts received more generous raises.
Being, er, un-young themselves, even the justices could empathize with the plight of older police workers. Decidedly less sympathetic are businesses, which, according to analysts, are somewhat atwitter over this case.
If the plaintiffs succeed, analysts foresee a flood of lawsuits anytime layoffs or cutbacks disproportionately affect older workers.
While asking the court to limit this type of lawsuit, defense lawyer Glen Nager acted perhaps a bit too honestly and openly. As he differentiated age discrimination claims from race and gender bias cases, he was quoted by the Boston Globe as telling the justices, "It's painful (considering the justices' ages) to point out that older employees have different mental and physical abilities."
The Globe's recount went on, "The justices, whose average age is 70, seemed unamused. Justice Ruth Bader Ginsburg reminded the Washington lawyer that artists like the composer Giuseppe Verdi did their best work in their 70s. The court members have lifetime appointments and total job security. Many of them appeared concerned about shutting courts to people penalized at work because of their age."
This is one instance in which, for the moment, market forces can and will prevail. As baby boomers (the largest-ever generation of Americans) begin to reach retirement, this nation's workforce faces the largest "brain-drain" and "skills-drain" it will ever have encountered in U.S. history.
Census data show a mere six years from now, 80 million baby boomers will begin to reach the age of 65. Today, one in three workers is older than 45. Two years from now the median age of America's workforce will rise to 40.6, up from 30 in the early 1960s. Highly-skilled industries such as medical technology, nursing and manufacturing are already facing a tremendous loss of expertise from downsizing, coupled with a rapidly aging workforce. Other industries will soon follow.
Phased retirement
Three factors -- relatively low unemployment (in historic terms), this tsunami of baby boomers rolling toward retirement and increased demands by younger workers for flexibility in employment -- have combined to spark the beginning of a demographic shift called phased retirement. While the number of corporations allowing workers to phase into and through retirement is still small, more corporations are letting older workers ease into retirement and in so doing work well beyond the average retirement age of 65-70.
Universities provide the model as they launched the phased retirement revolution before corporations. This change has taken place over the past two decades, as not only pre-retirement workers, but also young parents just launching their careers have sought flexible hours, job-sharing and telecommuting. According to the Employee Benefits Research Institute, such major corporations as ExxonMobil and Marriott have begun offering phased retirement plans allowing some employees to continue working part-time well beyond the traditional retirement age.
Does this mean the older police in Jackson were not discriminated against? Absolutely not. It does mean market forces may cure society of age bias well before the courts can do it. And this case makes another very important point.
If indeed the justices rule in favor of the senior police officers, it shows the value of understanding where an aggrieved party is "coming from." This is a court that has less sympathy for race and gender bias claims, but seems to completely "get it" when it comes to claims of age discrimination.
X Bonnie Erbe, host of the PBS program "To the Contrary," writes this column for Scripps Howard News Service.