Last year, the Supreme Court weakened laws against age discrimination by denying older workers a reasonable path to proving unfair treatment on the job.
In the case of Gross v. FBL Financial Services, the court, unjustly, placed a much higher burden of proof on workers who claim age discrimination than on workers who claim discrimination based on race, sex, national origin or religion. Unless Congress acts, older workers will continue to be denied the same rights as workers who have experienced other kinds of workplace discrimination.
While cases where an employer says “I am firing you because you’re too old” will remain straightforward, those where the discrimination is more subtle will be much harder to prove. For example, FBL Financial Services claimed that the mass demotions of workers over age 50 were the result of corporate reorganization, not age discrimination.
Rights to equal opportunity in the workplace don’t mean much if the Supreme Court effectively disables workers from enforcing them. The bottom line is the Gross case lets employers like FBL Financial Services off the hook, and renders age discrimination less deserving of legal protection than discrimination based on sex, national origin or religion.
On the heels of the worst recession since the Great Depression, this weakening of the age discrimination laws could not have come at a worse time. Unemployment rates for older workers are at historic highs, and once older workers lose their jobs, they face much longer periods of unemployment than younger workers. It is no surprise that age discrimination complaints filed with the Equal Employment Opportunity Commission jumped by nearly 30 percent between FY 2007 and FY 2008.
The Protecting Older Workers Against Discrimination Act (POWADA), sponsored by Sen. Tom Harkin, D-Iowa, and Rep. George Miller, D-Calif., would impose the same burden of proof on workers challenging age discrimination as workers who allege any other form of discrimination, restoring the law to what it had been before the Gross decision.
Specifically, the legislation would require that once an employee provides evidence showing that age discrimination was a motivating factor in his or her demotion or termination, the employer will then have the burden of proof to demonstrate the same decision would have been made regardless of the employee’s age.
AARP supports POWADA because it would restore the law to its status prior to the Gross decision, and treat age discrimination as seriously as other forms of employment discrimination.
In testimony before the House of Representatives, AARP Board Member Gail Aldrich called for enactment of workforce legislation to “eliminate the second-class status for victims of age bias” that flows from the Gross decision.
Aldrich said in her statement: “Older workers need effective age discrimination laws when employers choose to displace them based on their age, due to stereotypes or other forms of bias, rather than their performance or other legitimate business reasons. Working longer is good for society as earners typically pay more in taxes than retirees and contribute to the productive output of the economy. It is also good for workers, who have more years to save and less time in retirement to finance. And it is good for employers who retain skilled and experienced employees.”