Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, November 3, 1994 TAG: 9411030106
SECTION: NATL/INTL PAGE: B-7 EDITION: METRO
SOURCE: Associated Press
DATELINE: WASHINGTON LENGTH: Medium
``This is a statute that says `thou shalt not discriminate,''' Justice Ruth Bader Ginsburg told a lawyer for the Tennessee company that fired Christine McKennon.
``You are turning it around ... into something where the discrimination claim never sees the light of day,'' Ginsburg added.
But the Nashville Banner Publishing Co.'s lawyer, Eddie Wayland, argued that fired employees should lose any claim that they suffered discrimination if they later are found to have committed a firing offense.
``The employee has no one to blame but themselves,'' Wayland said. ``Congress did not intend the discrimination laws to benefit employees who are bad apples.''
McKennon filed an age-bias lawsuit against the Nashville newspaper company after she was fired in 1990 after 39 years on the job. She was told she was fired as part of a staff reduction.
The company won dismissal of the case after McKennon admitted during pretrial proceedings that she had taken confidential company documents home. She said she did it because she feared losing her job.
McKennon's lawyer, Michael Terry, urged the high court to reinstate her lawsuit.
``Wrongdoing by an employee doesn't remove the employee from the protection'' of laws against job discrimination, Terry said. ``My client would be working at the Nashville Banner today except for the discrimination.''
Although McKennon's case involved an age-bias law, the court's ruling - expected by July - also is expected to affect lawsuits alleging bias based on race, sex and other factors.
Wayland argued that allowing fired workers such as McKennon to pursue discrimination lawsuits ``is rewarding employees for their stealth and their concealment.''
Justice Antonin Scalia said that under Wayland's argument, ``If you bring a suit under this [age-discrimination] statute you'd better be ready to have your employment history scrutinized. ... It would be rather risky, wouldn't it, to bring such a suit?''
Justice Department lawyer Irving Gornstein backed Terry's argument that evidence of an employee's misconduct could be used to limit any award of back pay or reinstatement, but should not bar a job-bias claim altogether.
``There is no exception in the statute that would license an employer to discriminate on the basis of age against an employee who is engaging in misconduct,'' Gornstein said.
by CNB