Marks v. Loral Corp.

Opinion

SILLS, P. J.

I

Introduction

Michael J. Marks appeals from a judgment after the jury returned a defense verdict in his age discrimination and retaliation lawsuit against his former employer, Loral Corporation, and several other related entities and persons. He presents a series of challenges to various jury instructions, special verdict forms, and evidentiary rulings given by the trial court. Most

[36]

of his contentions are simply cavils about wording, and do not establish error, much less prejudicial error.

One of Marks’s arguments, however, has some real substance to it. For years now, the federal courts have struggled, in applying federal age discrimination law, with the problem of whether an employer’s policy or practice which has a “disparate impact” on older workers generally constitutes illegal age discrimination. A few years ago, Justice Kennedy noted the issue has yet to be resolved by the United States Supreme Court. (See

Hazen Paper Co.

v.

Biggins

(1993) 507 U.S. 604 [113 S.Ct. 1701, 1710, 123 L.Ed.2d 338] (conc. opn. of Kennedy, J.).) In the present case, Marks argues that a particular jury instruction was improper because it told the jury that an employer was entitled to prefer lower paid workers to higher paid workers, even if that preference results in choosing younger workers. Marks contends that the instruction was not proper. If it were, he says, it would eliminate the “vast majority” of age discrimination cases because of the “high correlation” between age and salary level.

In this case we need not decide the broad question of whether “disparate impact analysis,” as labor law mavens style it, can

ever

apply to age discrimination claims, under either federal or California law. We do, however, determine that the particular jury instruction here—which deals with the impact of compensation differentials in employer decisionmaking—was correct under both federal and state law: Employers may indeed prefer workers with lower salaries to workers with higher ones, even if the preference falls disproportionately on older, generally higher paid workers. Both the text and intent of the federal and state age discrimination statutes compel such a result. Moreover, when we look at the origins of the disparate impact doctrine, we find that, by its very nature, it was never intended to apply to something so basic to the running of any enterprise as its costs of doing business. There was thus no error in giving the instruction and the judgment must be affirmed.