AARP has fought against age discrimination on behalf of our members and all people age 50-plus since our founding more than a half-century ago. That fight is taking a new turn as the U.S. Senate considers commonsense, bipartisan legislation to reverse a 2009 U.S. Supreme Court decision that made it easier to discriminate against older workers. The legislation is badly needed, and AARP is calling on all senators to vote for protecting older workers.
The bipartisan bill S. 2189 — officially the Protecting Older Workers Against Discrimination Act (POWADA) — would overturn the Supreme Court's 5 to 4 decision in Gross v. FBL Financial Services Inc., which increased the burden of proof an older worker must meet to prove that an employer violated the federal Age Discrimination in Employment Act.
Restoring Legal Protections
Prior to the Gross decision, if an older worker could show that age was a motivating factor in an adverse employment situation — even if other motives also played a role — the employer had to prove that the same decision would have been made regardless of the employee's age.
The Gross ruling changed that standard, dramatically shifting the burden of proof to the older worker — who now has to prove that age was the determining factor in the adverse employment decision. This level of proof is a much more difficult standard to reach, and one not imposed on workers alleging other forms of employment discrimination, such as race, gender or religion. In effect, the Gross decision held that some amount of age discrimination is permissible and it imposed second-class status on charges of age bias.
Age Discrimination's Consequences
Age discrimination is a serious and growing problem. Complaints of age discrimination have increased by 23 percent since the start of the recession. The workforce is aging, and many older workers may try to stay on the job longer because of fewer employers offering pensions, inadequate retirement savings and lost housing wealth. However, older workers who lose jobs — as many did during the recession — face much longer periods of unemployment than younger workers do, lasting, on average, more than a year.
In these difficult economic times, age discrimination threatens the financial security of older workers who are looking for jobs as well as the security of those who may need to stay in the workforce to make ends meet.
Public Support for the Senate Bill
POWADA would restore and reaffirm the legal standards that protected older workers for years before the Gross decision. Older Americans overwhelmingly support passage of the bipartisan legislation. An AARP survey this past May of 1,000 registered voters age 50 and older showed that nearly eight in 10 (78 percent) support passage of POWADA. And 91 percent believe that workers should be protected against age discrimination just as they are against other forms of discrimination. Of those polled, 77 percent agree that age would be an obstacle to finding work if they had to find a new job in this economy.
Given those numbers, it's no surprise that 84 percent of the respondents agreed that Congress needs to do more to protect older workers from age discrimination and work to ensure that people over 50 continue to have an equal opportunity to work for as long as they want or need to — regardless of their age.
AARP agrees. Older workers need protection against age discrimination, and POWADA would restore those needed protections. We hope you will join in our fight to combat bias against older workers and support S.2189, the Protect Older Workers Against Discrimination Act.
Call your senators — or make your voice heard — and tell them to protect older workers against age discrimination by passing S.2189.
In tough economic times, age discrimination claims increase, both from people who have lost jobs as well as from those trying to land new jobs, according to Laurie McCann, AARP Foundation senior litigation attorney.