Civil Rights Reaffirmed

IMAGINE you're a 62-year-old secretary in a Nashville publishing company. In what is described as a downsizing strategy, you're told - very sorry - that your job (meaning you) has been terminated.

But wait. After you're out of there, a 26-year-old is hired to fill your old position.

Could there be a more obvious case of age discrimination? Christine McKennon certainly thought the issue was clear as crystal and brought suit. Even her employer, the Nashville Banner, conceded that her civil rights had been violated under the age discrimination law of 1967.

But after admitting the illegality of her dismissal, the Banner then put her record under a microscope and argued retroactively that she could have been fired legally for taking confidential documents home from the office, a violation of company policy never mentioned at the time of her dismissal.

This tactic - use of what is known as ``after-acquired evidence'' - has become popular among employers as more and more federal courts have allowed such ex post facto arguments to serve employers wishing to avoid liability for back pay, the minimum penalty assessed for unlawfully discharging an employee because of race, religion, sex, or age.

Behind the legal razzle-dazzle, an important principle is at stake here, which the Supreme Court has unanimously recognized in overturning the judgment of two lower courts that had ruled against Ms. McKennon's suit. Putting the question straight morally as well as legally, Justice Anthony Kennedy in his written opinion asked: What was the motive for dismissing McKennon?

The designers of the civil rights legislation of the 1960s, including the late Supreme Court Justice Thurgood Marshall, understood that prejudice is a habit of the heart - a secret motive that must be publicly acknowledged, not only for the benefit of the victim but for the health of society.

By concluding in the McKennon case that no legal argument can take precedence over civil rights, the Supreme Court has done justice to the vision of Thurgood Marshall, which he worked so hard to make the vision of America as well.

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