The Supreme Court has, by a 5-4 vote, made it more dificult to prove age discrimination. The case is Gross v. FBL Financial Services, Inc (Scotuswiki, docket).
From civil rights.org:
The lawsuit was brought by Jack Gross, a longtime employee of FBL Financial Services, Inc., who was demoted at the age of 54 through what the employer called a restructuring. Gross argued his demotion was the result of his age and filed suit under the Age Discrimination in Employment Act (ADEA) of 1967, which prohibits employment discrimination against workers over the age of 40.
In a broad decision, the Court reversed a longstanding rule used by many federal appellate courts that provided for a two-step process in some age discrimination cases under the ADEA. Previously, the employee had to demonstrate that age was a motivating factor in the employer's decision, which then shifted the burden to the employer to prove that the action was based on grounds other than age. Now, the employee carries the full burden of showing that age was the determining factor in a demotion or layoff by an employer.
The Denver Post editorializes against the decisison and argues that the Age Discrimination in Employment Act needs to be strengthened:
As the workforce gets older, times get tougher and workers need to stay on the job longer to make ends meet, anti-bias protections are increasingly important.
Congress ought to revise federal employment law to ensure older workers have adequate avenues of redress when they are wrongly terminated.
The case also illustrates a point we make in 2301 when we discuss discrimination and the various levels of scrutiny applied to different types of discrimination. Again, from the Post:
The practical impact of the decision will be to create an unfair distinction between age discrimination cases and other types of discrimination cases based on gender, race and ethnicity.
"It reinforces the notion that age discrimination is somehow different and not as bad as other types of discrimination," Thomas Osborne, lawyer for the AARP Foundation, was quoted as saying in The National Law Journal.
The remedy for this situation is for Congress to amend the Age Discrimination in Employment Act so the burden of proof mirrors that in Title VII of the Civil Rights Act, under which other discrimination cases are brought.
The Post's comment concludes by reminding us that the public policy process within the system of separated powers, is never ending. The decision, since it is based on the court's interpretation of statutory language, can be negated by clarifying that statutory language. This means revising the Age Discrimination in Employment Act of 1967:
Support for such a revision is brewing, and we're glad to see that. Senate Judiciary Chairman Patrick Leahy, D-Vt., expressed dismay over the decision. He and others in Congress ought to muster support for an ADEA revision and pass it.
Lengthening lifespans and delayed retirement dates make it clear that our society will be facing new issues involving workers staying on the job longer.
It is patently unfair that older workers should have to shoulder a heavier burden than others in proving workplace discrimination.
