Veteran writers to press on with age discrimination suit. (Up Front).

Austin Kalish wrote for 1970s television shows "All in the Family," "The Bob Newhart Show" and "Good Times." Today, he directs plays and writes speeches.

And though he almost never gets calls returned from talent agents, in many ways he counts himself lucky. Most of his close friends, all over 40, are unemployed.

The reason, says the 82-year-old Kalish, is age discrimination. He says he first noticed it 20 years ago, but proving it hasn't been easy.

As Kalish explains, "You go to a studio and somebody says, 'You're too old. We don't want you. You don't think young.' And I say to a judge, 'That's what they told me in their office.' And they say to the judge, 'I never said that.' That's all that needs to be said. I'm a crank for saying what I did."

A Los Angeles Superior Court judge dismissed a proposed class action lawsuit last month filed by Kalish and 174 other older screenwriters that would have consolidated 23 separate suits against television studios and networks. In his opinion, Judge Charles McCoy Jr. said the writers lacked standing to file a class action, exceeded the law's statute of limitations to tile the suit, provided inconsistent statistics and failed to give specific examples of discrimination.

The suit named dozens of television studios and networks, including NBC, Universal Television, Fox, Warner Bros. Television, USA Networks and ABC.

The writers, who previously lost a case in federal court, can still sue individually. But their Washington attorney, Paul Sprenger, says that's not a viable option.

Kalish agrees. "If it isn't a class action, it won't work," he said. "As a single person going in, you're fighting the dinosaurs."

Calls to the attorneys representing the studios were not returned. My Khanh Shelton, in-house attorney at Fox Entertainment Group Inc. declined comment.

An old sang

Age discrimination in Hollywood is hardly a new claim. "I don't think anyone disputes that point, although the entertainment people may," said Anna Park, regional attorney for the Equal Employment Opportunity Commission.

But David Greenberg, a Beverly Hills discrimination attorney, says it's hard to prove. Greenberg says several writers asked him a few years ago to file a class action alleging age discrimination against the studios, but he didn't take the case because he could not come up with the evidence necessary to win.

"You need a lot of proof to say that basically there's a conspiracy among these defendants they all agreed not to hire people over 40," Greenberg says. "It's too big a bite of the apple. They should take smaller nibbles."

In the proposed class action, the writers quote dozens of executives at the studios and television networks stating they no longer want to hire writers over 40.

They outline, in 23 separate but similar lawsuits, how each writer has failed to find work after the age of 40.

In their federal court suit, which was incorporated into the state court case, the writers provided statistical evidence of age discrimination from a 1998 report commissioned by the Writers Guild of America. (The WGA is not involved in the suit, which includes only WGA members, and officials at the trade group declined to comment on the suit.)

According to that report, employment for writers in their 40s, 50s and 60s fell steadily with age from 1987 to 1997, while employment for those under 30 increased. In 1997, 60 percent of writers under 30 were employed, compared with 46 percent of those in their 40s, 32 percent of those in their 50s and 19 percent of those in their 60s.

But McCoy ruled that those statistics are inconsistent with the writers' claims. One defense attorney said that by offering WGA data showing how older writers were working, the plaintiffs undermined their own case.

Most of the writers are "deterred applicants," meaning they believe it has been futile to even bother applying for work given the widespread ageism that exists, attorneys say. For those writers who applied for jobs, McCoy ruled that they lacked sufficient evidence to prove discrimination.

Greenberg says age discrimination cases are best proven with specifics. He suggests writers provide details of a time they applied for a job at a specific company for a specific job but were turned down in favor of a less-qualified younger candidate.

Rather than provide those details, which Sprenger says would require filing a 12,000-page complaint, the plaintiffs merely indicated that they used to be hired when they were younger but now they were not.

"Usually when we do hiring cases, we look at the criteria (employers) use for that job," Park said. "In dealing with writers, the difficulty is always to sort out what they're looking at. There's always a subjective component that may be more difficult. There could be a litany of reasons why a writer wasn't hired. Maybe his story wasn't very good, for whatever reason."

Sprenger is undeterred. He says he intends to fight Judge McCoy's procedural rulings.

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