House, Senate Bills Would Overturn Supreme Court Age Discrimination Ruling

Workforce Management
October 7, 2009

For the second time this year, Congress will try to overturn a Supreme Court ruling on workplace law.
Senate and House bills introduced on Tuesday, October 6, would reverse a June court decision that made it more difficult for employees to sue for age discrimination.
The court held in Gross v. FBL that the plaintiff, Jack Gross, had to prove that age was the only reason that he was demoted from his job as a vice president at FBL Financial Group Inc. in Iowa when the insurance company Farm Bureau merged its Iowa and Kansas operations in 2002.
In a 5-4 decision, the court said that age couldn’t simply be a “motivating factor” in an employment decision; it had to be the decisive cause in order for age discrimination protections to take effect.
But Sen. Tom Harkin, D-Iowa and chairman of the Senate Health Education Labor and Pensions Committee, said that the Supreme Court was in effect “rewriting” the Age Discrimination in Employment Act.
The court “invented a new standard that makes it prohibitively difficult for a victim to prove age discrimination,” Harkin said at a Capitol Hill news conference. “This extraordinarily high burden radically undermines older workers’ ability to hold employers accountable.”
A bill written by Harkin and Sen. Patrick Leahy, D-Vermont and chairman of the Senate Judiciary Committee, clarifies that when a victim shows age to be among the reasons for an adverse job decision, an employer must prove that it would have taken the action regardless of the employee’s age.
Titled the Protecting Older Workers Against Discrimination Act, the bill has a House companion introduced by Rep. George Miller, D-California and chairman of the House Education and Labor Committee.
It’s too early to tell how the measure might affect employers, according to Leslie Silverman, a partner at Proskauer Rose in Washington and a former member of the Equal Employment Opportunity Commission. Much will depend on the legislative details.

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