New America Media – Editor's Note: As tough as the job market is for older workers today, the US Supreme Court made their job prospects even worse by weakening their ability to sue employers for age discrimination. As congressional liberals try reversing the decision, its effects are spreading, especially for older ethnic workers. Attorneys Simon Lazarus and Sergio Eduardo Munoz of the National Senior Citizens Law Center explain the court's decision and its implications.
Older workers know that this economy is an especially grim environment for them, but few are aware that last summer, the US Supreme Court made their job prospects significantly worse.
At the end of the court's last term, a bare 5-4 majority reinterpreted the Age Discrimination in Employment Act (ADEA) in a way that makes this half-century old guarantee of equal opportunity a virtual dead letter. Inevitably, many employers, pressured by the recession to slash payroll outlays even at the cost of losing valuable experienced workers, will see the decision as a green light to fire higher-paid veterans. In Congress, key leaders know this and are fast-tracking legislation to overturn it.
The court's decision tossed out a jury verdict in favor of Jack Gross, 61, an Iowa Farm Bureau insurance risk manager. He had, after a consistently well-reviewed career, suddenly faced a no-win company offer to buy out everyone over 50 and demote those who refused. He sued – and won.
The jury saw the company's self-styled "reorganization" as cover for blatantly unlawful age discrimination, but the Iowa Farm Bureau appealed and was victory in the Supreme Court last June.
After the high court bounced him back to square one, Gross, a life-long Republican, recently testified before Congress that the conservative justices had hijacked his case to make an ideological point. His view cannot be dismissed as sour grapes. The dissenting four justices characterized the majority's handiwork in unusually sharp language as "unabashed judicial law-making", "irresponsible", and in "utter disregard" of the Supreme Court's own precedents and "Congressional intent".
For older American workers, the ramifications of the court's rewrite of the law are severe and immediate. Previously, age discrimination victims could prevail in court by proving that unlawful bias was "a motivating factor" for their adverse treatment. But the Supreme Court has now changed that rule to require proof that unlawful bias was the only cause of adverse treatment. This guts the ADEA.
After all, employers rarely leave "smoking gun" proof of discrimination lying around. More often, they create paper trails justifying adverse actions on seemingly legitimate business-related grounds. In such circumstances, proving that age was the exclusive, rather than simply a "motivating" factor will not realistically be possible. Lawyers will counsel their business clients that they have nothing to fear if they pay lip service to the ADEA but ignore it in practice.
The damage from this decision doesn't stop with older workers. The Supreme Court's hotly contested interpretation of the ADEA is threatening to undermine myriad other federal anti-discrimination laws.
Already, courts are interpreting the ruling to require that any prohibited form of discrimination be the sole reason for an adverse action in cases ranging from jury service to free speech, even if age is not a factor.
Perversely, such creeping expansion of Gross has led many victims to a Hobson's Choice. If employees finds themselves discriminated against on more than one actionable ground, they may be forced to choose only one reason for litigation – or not litigate at all.
Bills to overturn the court's Gross decision were recently introduced in the Senate by Senators Tom Harkin, D-Iowa, and Patrick Leahy, D-Vt. The key sponsor in the House is Rep. George Miller, D-Calif.
Swift enactment could not be more urgent. As older workers attempt to retain, or obtain, employment in a climate of spiraling job losses, protection against employment discrimination is critical.
Moreover, the importance of fixing Gross is heightened for those doubly at risk of adverse employment action because of age and ethnicity. For ethnic elders, that tough Hobson's Choice isn't a hypothetical. An Alabama court has already told a victim of alleged race and age employment discrimination to choose only one factor or the other to litigate because of Gross.
Ultimately, this order may very well comport with the conservative Supreme Court majority's perspective on how discrimination against ethnic elders should be litigated. Too bad it doesn't fit – and can't cure – discrimination as it actually occurs in real world workplaces.