Tough getting old: Ruling hurts over-55's
When I was younger, there was a saying, "Don't trust anyone over 30." Now that I'm on the downhill side of 30, I see age differently.
Discrimination against workers based on age is against the law. However, a recent U.S. Supreme Court decision may have tilted the argument to favor employers. Workers will have greater difficulty proving they've been discriminated against and harmed. But business managers would be foolish to now assume it's "open season" on older workers.
And as Congress and President Obama recently did regarding an earlier Supreme Court ruling in a wage-sex discrimination case, the age discrimination ruling likely will be overturned by legislative action.
Bottom line: Employers discriminating against workers or job applicants based on age is wrong, risky, and just plain not nice.
A 5-4 decision written by Justice Clarence Thomas and signed by a mostly conservative court majority concluded employees bringing federal age-discrimination claims bear the burden of proving their age was a primary factor in an adverse job action.
The justices ruled even if an employee can prove age discrimination occurred, they must prove it was the primary motivation of a job action, not "one motivating factor."
Justices further ruled the burden of proof remains with the employee, not the employer. In other words, a worker must prove age discrimination was the primary reason behind a demotion, layoff, hiring decision, etc. The employer doesn't have to prove it wasn't.
The ruling comes as a weak economy is rocked by business closures and downsizing. Workers 40-plus are among the hardest hit by layoffs. A recent AARP Public Policy Institute analysis revealed once unemployed, senior workers -- those aged 55 and over -- remain out of work longer than younger workers. The U.S. Equal Employment Opportunity Commission reported the number of newly filed age-bias claims rose 29 percent last year.
In a dissent, Justice John Paul Stevens called the majority opinion "an unabashed display of judicial lawmaking" that disregarded prior Supreme Court precedent and congressional intent.
The court majority refused to apply to the federal Age Discrimination in Employment Act the same burden-shifting framework -- shifting the burden of proof to the employer -- that applies in claims filed under the Civil Rights Act.
The decision stems from a lawsuit filed by Jack Gross, a longtime FBL Financial Group Inc. employee in Des Moines, Iowa. In a 2003 company reorganization, Gross, then 54, was demoted and replaced by a younger woman, who used to work for him.
Claiming age discrimination, Gross sued the company. A jury found in his favor, but the verdict was overturned by the 8th U.S. Circuit Court of Appeals, before moving to the U.S. Supreme Court.
Already members of Congress are likening this ruling to the 2007 Lilly Ledbetter decision in which a 5-4 majority concluded a woman paid less than her male co-workers for doing the same job could not sue because she did not learn of the years-long discrimination until she retired. Congress passed legislation, which President Obama signed, lifting the time limit.
No doubt Congress will pass legislation to have age discrimination claims treated the same as other discrimination claims.
But it will be important for Congress to practice restraint in adopting new safeguards. Employers should not be hamstrung, particularly in these difficult times. Employers also must practice restraint. They must assume they will be required to prove their job actions are based on sound business decisions, not discriminatory practices.
Kathryn Fox is a Bakersfield attorney who handles wage, hour, discrimination, harassment and other employment law matters.
