In 2002, justices scuttled one attempt to settle the question, in a challenge by fired utility workers in Florida.
The court yesterday refused to hear the appeal of a former Electronic Data Systems Corp. employee from Alabama who claimed EDS targeted people over age 40 for layoffs. Justices did not explain their rationale.
EDS, which is based near Dallas, had argued that this case was a bad one for the court to review, because Jack Thweatt Jr. did not give specific enough information about alleged discrimination.
Thweatt's lawyers argued that the company gave lower performance rankings to older employees so that they would be up first for layoffs.
At issue is whether elderly workers have to prove that employers intended to discriminate. That is often a harder case to make than claims that layoffs that appear evenhanded on their face disproportionately hurt older workers in reality.
EDS attorney Martin Wymer of Cleveland said that if impact cases are allowed, companies would struggle to defend themselves. "With creative statisticians, just about anyone could make some sort of showing of a statistical disparity," he said yesterday.
Some federal appeals courts have allowed that type of age bias lawsuit, but many others have not.
"Until the [Supreme Court] settles this, employees' rights depend entirely on where they live," said Thweatt's attorney, John Crabtree of Key Biscayne, Fla.
EDS cut thousands of jobs over the past three years as the market for computer services slumped.
So far in 2003, companies have announced 1.1 million job cuts, compared to more than 1.4 million in 2002 and nearly 2 million in 2001, according to employment research firm Challenger, Gray and Christmas.
The Supreme Court is already reviewing one age discrimination case this term, which asks whether middle-aged workers can sue their employers for treating older workers better.
