Marks

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 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…