Restore Equal Opportunity For Older Workers

The National Senior Citizens Law Center commends Congress for introducing legislation to override Gross v. FBL Financial Services, Inc.

Restore Equal Opportunity For Older Workers

 

The National Senior Citizens Law Center commends Senate HELP Committee Chair Tom Harkin and House Education and Labor Committee Chair George Miller, as well as Senate Judiciary Committee Chair Pat Leahy and House Constitution Subcommittee Chair Jerry Nadler, for taking the lead in introducing and fast-tracking legislation to override a June 2009 Supreme Court decision that stripped older workers of vital protections against bias on which they had relied for over 40 years.  In this decision, which the dissenting justices characterized as “unabashed judicial law-making,” “irresponsible,” and in “utter disregard” of the Court’s own precedents and “Congressional intent,” a narrow 5-4 majority so weakened the 1967 Age Discrimination in Employment Act (ADEA), that employers are left with little incentive to comply with its equal opportunity mandate.

 

The case, Gross v. FBL Financial Services, Inc., creates a veritable perfect storm for older workers.  Numerous surveys show that the current financial crisis has forced older workers at all economic levels to shelve plans for retirement, and attempt to stay in, or re-enter the job market.  One survey, published in March 2009, reported that 60 percent of workers over 60 have made that decision. 75 percent of the $2.8 trillion that vanished from group (401[k]) and individual (IRA) account assets during late 2007 and 2008 belonged to persons over 50.  In addition to the disproportionate impact of this implosion of retirement assets, declining house values and rising health costs have seriously exacerbated the financial squeeze on older workers, and intensified pressure to continue to work.  

 

Or hope to.  When recession strikes, employers often target veteran employees in RIFs, and disfavor older candidates for whatever new positions they may need to fill.  As management expert Professor Michael Campion testified before the Equal Employment Opportunity Commission (EEOC) on July 15, 2009, “common negative stereotypes about older workers,” which the ADEA was passed in 1967 to eliminate, have proven regrettably resilient. ADEA claims submitted to the Equal Employment Opportunity Commission (EEOC) spiked nearly 30% in June 2009 compared with the same month a year earlier.

 

Federal lower court decisions confirm that Gross has radically tightened standards for proving workplace age discrimination, to an extent that, if not promptly corrected by Congress, will cause a vast proportion of age bias complaints to fail, whatever their merit.  Justice Clarence Thomas’ opinion for the 5-4 Court majority repeatedly states that a victim of age discrimination, in order to prevail in court, must prove that unlawful bias was “the but-for” cause of adverse treatment.  Previously, plaintiffs alleging ADEA violations had the option of proving that age bias was simply a “motivating factor.”  The latter remains the applicable standard for claims of discrimination arising under Title VII of the Civil Rights Act, which include most matters involving race, gender, or other types of workplace discrimination other than age. 

 

The Court’s new rule will largely nullify the ADEA.  This is so because most workplace actions have – or employers can readily generate evidence to support the existence of – several but-for causes.  But Justice Thomas’ “the but-for cause” standard can be interpreted to require that age bias be the “sole” cause of adverse treatment. In fact, in the barely three months since Gross was decided, at least 27 federal courts have already read the decision to impose this “sole cause” standard or its practical equivalent.  

 

Hence, virtually any evidence of any other factors, whether business-related or not, suffices to throw a legitimate age discrimination victim out of court.  Realistically, proving that age was the exclusive, rather than a “motivating” factor will almost never be possible.  Employee-side lawyers will know that, so they will rarely waste their time and resources to bring cases when age bias victims come to them for help.  Business lawyers will also know that, and will counsel clients that they have nothing to fear if they pay lip-service to the ADEA but ignore it in practice.

 

Several post-Gross lower court decisions confirm that the Court’s unworkable exclusive cause approach to winnowing ADEA claims will be applied to undermine many additional antidiscrimination statutes.  Indeed, courts have even applied the Court’s debilitating approach to statutes outside the antidiscrimination area that prohibit adverse treatment “because of” or “by reason of” specified factors, such as retaliation against whistleblowers or employees who take time off for jury service.

 

Congress needs to act swiftly to prevent further metastasizing of this threat to the economic security of older Americans and all Americans. 

 

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Contact: Simon Lazarus

              NSCLC Public Policy Counsel

               202-236-5064 (mobile)

               202-289-6976, ext 205 (o)

              Simonlaz@comcast.net