The case will address discrimination against younger workers.

WASHINGTON (AP) – The Supreme Court agreed Monday to look at whether middle-aged workers can sue their employers for treating older workers better.

About 70 million U.S. workers are 40 or older, roughly half the nation’s work force. They can sue under a federal discrimination law when younger colleagues get preferential treatment because of age.

James J. Brudney, a professor specializing in employment issues at Ohio State University’s law school, said the case the court agreed to hear next fall raises an interesting question at a time when workers are aging: “Can 40-somethings be victims of age discrimination when 60-somethings are advantaged?”

At issue is a benefits change at a division of General Dynamics Corp., which makes battle tanks and combat vehicles for the military. Under the change negotiated in a union contract, only longtime workers over age 50 as of 1997 could receive full health benefits after they retired. Before 1997, all workers with 30 years experience could retire and receive free health insurance.

An appeals court ruled the company could be sued under the 1967 Age Discrimination in Employment Act, which protects people over age 40 from age bias.

Business groups say if the court lets that decision stand, companies are in a no-win situation.

“Some plaintiffs may allege they were not hired because they were too old while others claim they were rejected because they were too young,” groups including the U.S. Chamber of Commerce and National Association of Manufacturers told justices in a filing. “Thus, an employer could be sued for discriminating against both older and younger applicants at the same time.”

But Mark Biggerman, the attorney for about 200 General Dynamics employees, said the workers in their 40s were victims of discrimination.

“Our position is that the age discrimination act is very clear,” he said. “It’s only a two-part test. Are you over 40? And were you discriminated against because of age?”

General Dynamics maintains Congress intended to protect “older” employees. To allow lawsuits challenging better treatment of those workers would “undermine the very protections and opportunities that Congress sought to secure,” attorney William Kilberg told justices in a filing.

The court agreed to review the case on the same day that it heard arguments in a sex discrimination case that asks the justices to clarify what proof workers who claim discrimination must produce. The case involves a woman who worked with an all-male team at Caesars Palace in Las Vegas before she was fired in 1994.

Catharina Costa drove trucks and operated heavy equipment at Caesars from 1987 until she lost her job. An appeals court called her a “trailblazer” and said she was entitled to damages for sexual discrimination.

Justices were considering whether she had to produce direct evidence of the discrimination.

The cases are General Dynamics Land Systems Inc. v. Cline, 02-1080, and Desert Palace Inc. v. Costa, 02-679.

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On the Net:

Supreme Court: http://www.supremecourtus.gov/

General Dynamics Land Systems: http://www.gdls.com/

AP-ES-04-21-03 1713EDT