By Will Parry
A 5-4 decision by the Supreme Court in 2009 has virtually destroyed workers’ right to sue under the federal Age Discrimination in Employment Act.
The decision, in Gross versus FBL Financial, shifted the burden of proof so that workers have to show that their age was the deciding factor — not simply one of multiple factors — in an employer’s decision to discharge or demote an older employee.
Justice Clarence Thomas wrote the majority opinion, joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito.
Before the Supreme Court decision, if a worker showed that age was a factor in an employment decision, the employer would have to demonstrate that he acted for valid and nondiscriminatory reasons. Since the decision, the New York Times reports, “lower courts have applied its onerous standard of proof to deny thousands of age discrimination claims.”
Some courts have even applied the ultra-tough standard to cases involving disabilities and to those alleging discrimination based on race, sex, national origin and religion.
To address this sweeping injustice, Iowa’s two senators, Republican Charles Grassley and Democrat Tom Harkin, have introduced legislation to reverse the Supreme Court’s ruling and restore older workers’ rights.
The legislation is urgently needed. The Equal Employment Opportunity Commission says age-related charges make up a growing number of complaints filed with EEOC.
Gerald Maatman is a Chicago attorney who represents employers in age discrimination cases. He admits that employees have a hard time bringing cases. “Those claims are very, very difficult to prove, in that the smoking gun evidence that needs to exist to prove a successful claim is very difficult to find in those circumstances.”
The Gross decision has had a chilling effect, according to Dan Kohrman, an AARP Foundation senior attorney.
“These kinds of decisions scare off workers and scare off lawyers,” Kohrman says. “The clear trend is, its harder to prove an age case.”