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by Jack Gross, From the AARP Bulletin Print Edition, September 1, 2010
I never, never imagined when I was demoted seven years ago and then filed an age discrimination suit that I would end up in the U.S. Supreme Court, that I would testify before five congressional committees, or that my name would become associated with the future of age discrimination laws in our country. I do believe, however, that it happened for a reason.
This all began in January 2003. When my employer, Farm Bureau Financial Group (FBL) in Iowa, merged with the Kansas Farm Bureau, the company apparently wanted to purge claims employees who were over age 50. All the Kansas claims employees over 50 with a certain number of years of employment were offered a buyout, which most accepted. In Iowa, virtually every claims supervisor over 50 was demoted.
Being 54, I was included in that sweep, despite 13 consecutive years of top performance reviews. The company claimed this was not discrimination but simply a reorganization. In 2005, a federal jury spent a week hearing testimony and seeing the evidence. The jurors agreed with me, and determined that age was a motivating factor in my demotion. Since then, the case has taken on a life of its own, including an appeal to the 8th Circuit Court and a U.S. Supreme Court hearing and decision.
Since the Age Discrimination in Employment Act was passed in 1967, courts had ruled consistently that the law protected individuals if their age was a factor in any employment decision. But in my case, the Supreme Court unexpectedly changed course and ruled that age had to be the exclusive reason for my demotion, even though that wasn’t the question before them. They simply hijacked my case and used it as a vehicle to water down the workplace discrimination laws passed by Congress.
This new and much higher standard of proof is clearly inconsistent with the intent of the ADEA and four decades of precedent, and will affect millions of workers. A new trial was ordered and is scheduled for November, nearly eight years after my demotion.
I did not pursue this case just for myself. From my observation, discrimination victims are usually the most vulnerable among us, those who simply cannot fight back. Thanks to my attorneys, who believed in me, my case, and now our cause, I was able to take a stand against my unjust and unlawful treatment. Many of my friends are also farm or small-town “kids” who feel like they are the forgotten minority. Many have been forcibly retired or laid off. Some have been looking for work for months, only to find doors closed when they reveal the year they graduated. Others are working as janitors despite good careers and college degrees. They all know that age discrimination is very real and pervasive.
We now look to Congress to pass the Protecting Older Workers Against Discrimination Act (H.R. 3721), to provide the same protection for older people as protection given to people of color, women or people of different faiths.
While this ordeal has been stressful, observing all levels of our judicial and congressional processes “up close and personal” has been a real education. My faith in our judicial system was shattered by the Supreme Court’s errant 5-4 decision. I believe Congress, as representatives of we, the people, will rectify it. You can help by contacting your own senators and representatives to encourage their support.
I am sincerely grateful for the assistance of people and groups truly dedicated to ending workplace discrimination of any kind in our great nation.
Jack Gross was aided by AARP in the U.S. Supreme Court’s precedent-setting age discrimination case.
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