Congress Examines Age Bias (court cases, that is)
The Supreme Court has not been historically sympathetic to age discrimination cases. A recent New York Times editorial post stated that Congress is considering overturning a court ruling about age discrimination (Gross v. FBI Financial Services, Inc.) The ruling said that older workers must show that age was the decisive factor in their firing — not merely a contributing factor.
In 1967 Congress passed the Age Discrimination in Employment Act (ADEA), but the courts have made age discrimination suits very difficult. According to the Times piece, in 1993, in one of its most damaging rulings, the Court decided that if employers fire workers whose pension costs or salaries are high, they are not discriminating — even if the overwhelming number of people fired are older workers.
In our practice, we often see age discrimination that is subtle, with other factors involved. In those cases, we help negotiate a severance package and advise the client to move on.
What’s surprising is that there are still instances where it’s blatant and systemic (as pointed out by the Times article). Clients with the emotional -- and financial --resources may then choose to take a stand. But the burden of proof is on the plaintiff. The Supreme Court’s ruling in Gross v. FBI Financial Services (the case that Congress is thinking about reversing) said when there are mixed motives, the plaintiff has to prove age was the “but for” reason. This doesn’t work in terms of fairness and is inconsistent with the way other forms of discrimination are treated.
Interestingly, one blog reporting on this case rightly points out that the Supreme Court opinion states that Congress neglected to provide for a “mixed motive” analysis in age discrimination cases. On one level, as citizens, we might find it annoying that Congress and the Supreme Court are engaged in finger-pointing on an important issue. On another level, it shows that if Congress does act to reverse the rule in this case, it is not necessarily repudiating the Supreme Court but accepting the message that the law requires correction.
