Bill Introduced to Redress High Court Ruling Penalizing Older Workers

by Mike Hall, Oct 6, 2009

In June, the U.S. Supreme Court took aim at older workers and age discrimination cases with a 5-4 ruling written by Justice Clarence Thomas that forces older workers to jump a higher than previous legal hurdle to prove age discrimination.

Today, the Protecting Older Workers Against Discrimination Act was introduced in Congress to restore vital civil rights protections for older workers in the face of the high court’s decision, Gross v. FBL Financial. That case, say lawmakers, rewrote civil rights laws and overturned well-established precedent, making it harder for workers facing age discrimination to enforce their rights.

The bill was introduced by the chairmen of three key congressional committees: Rep. George Miller (D-Calif.), House Education and Labor Committee; Sen. Tom Harkin (D-Iowa), Senate Health, Education, Labor and Pensions (HELP) Committee; and Sen. Patrick Leahy (D-Vt.), Senate Judiciary Committee.

Says Miller:

The same conservative Supreme Court justices responsible for the backward ruling against Lilly Ledbetter have now thrown another legal barrier in front of hard-working older Americans. Workplace discrimination based on age is just as wrong as discrimination based on any other irrelevant factor—and it should be treated as such in the court of law.

The court ruled it is no longer enough for a victim of discrimination to prove that age was a motivating factor in an adverse employment decision. Now, a worker must prove it was the decisive factor, a higher legal burden than those alleging race, sex, national origin or religious discrimination. Says Harkin:

For decades, we have had a consistent standard, whether based on race, sex, national origin, religion or age. The Gross decision established a far higher standard of proof for age than for other forms of discrimination, without any rationale or justification.

In a dissenting opinion, Justice John Paul Stevens said the ruling was “an unabashed display of judicial lawmaking” that proceeded with “utter disregard of our precedent and Congress’ intent”

Jack Gross, then a 54-year-old employee of FBL Financial, filed an age-discrimination suit after he was transferred and demoted. A lower court awarded him $47,000, but the Supreme Court nullified the award and set the higher standard. Leahy says he is concerned that

the Gross decision will allow employers to discriminate on the basis of age with impunity as long as it is paired with other reasons.

The trio of lawmakers noted that the soaring unemployment rate has hit older workers especially hard—there are 2 million jobless workers over age 55. According to the Equal Employment Opportunity Commission, nearly 25,000 age-discrimination claims were filed in 2008, a 30 percent increase from 2007.

Says Miller about older employees:

In this economy, they are the first to go and the last to be rehired. If older Americans lose their jobs, they should know it is on the merits, and not based on prejudice.

The move in Congress to redress the rights of older workers follows the successful enactment this year of the Lilly Ledbetter Fair Pay Act, which was a response to a 2007 Supreme Court ruling that made it harder for women and other workers to win justice in pay discrimination cases.

In the Ledbetter case, the high court ruled that Ledbetter—and other workers—had no right to sue for a remedy in cases of pay discrimination after more than 180 days following the first paycheck, even if pay discrimination was not discovered until years later. It took Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job and was able to file suit.

In January, the fair pay bill was the first legislation President Obama signed after taking office. It also was the target of veto threats from former President Bush after the House passed it in 2007. Last year, Republican senators blocked a vote on the bill.

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