Protecting Older Workers Against Discrimination

The U.S. Supreme Court stuck a dagger in the heart of the Age Discrimination in Employment Act a few years ago in its decision, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009).

Prior to Gross, the same standard of proof applied equally to all workers who faced illegal discrimination on the job. The Court in Gross established a far higher standard of proof for plaintiffs in age discrimination cases than exists for plaintiffs in cases alleging discrimination based on race, sex, national origin and religion.

A bi-partisan bill was introduced in the U.S. Senate in March to rectify this wrong. Under the Protecting Older Workers Against Discrimination Act , if a victim can show that age discrimination was a “motivating factor” behind a decision, the burden shifts to the employer to show it complied with the law. The bill is co-sponsored by Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Vermont Senator Patrick Leahy (D-VT).

After Gross, plaintiffs in age discrimination cases were required to prove that age discrimination was the “but for” cause of their termination (i.e., “but for” age discrimination, they would not have been demoted or fired.)

Alternatively, employers could point to any other “legitimate non-discriminatory” reason for firing the Plaintiff to avoid liability.  (“Sure we thought the old fogey was an over-paid dinosaur but he failed to follow company procedure when he called in sick one day so he’s gotta go!”)

Under the proposed bill, it wouldn’t matter if the employer had more than one motivating factor – if one of those motivating factors was age discrimination, the employer could be held liable.

The  Court reasoned backwards in Gross.  The Court said that Congress amended Title VII of the Civil Rights Act of 1964 to permit mixed-motive claims in discrimination claims involving race, color, religion, sex and national origin. So the fact that Congress failed to amend the ADEA to permit mixed-motive claims meant that Congress intended to disallow mixed -motive claims.  The Court threw out decades of precedent that treated age discrimination like every other invidious form of discrimination and left countless older workers without real protection against age discrimination.

The Gross decision has also had reverberations in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.

Harkin is Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

About pgbarnes
Attorney at Law

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