Why restoring the legal rights of older workers is a must!
Source: rocket50
By: Janet Peischel rocket50 Contributor
Date: April 11, 2023
A Closer Look at the 2009 Supreme Court Ruling that Gutted the Age Discrimination Act
The Age Discrimination in Employment Act of 1967 (ADEA) protects those who are 40 years of age or older from employment discrimination based on age. It’s always been difficult to prove age or any kind of discrimination. But this 2009 Supreme Court ruling, Gross v. FBL Financial Group, Inc., gutted ADEA.
In 2009, the Supreme Court ruled in Gross v. FBL that workers who face age discrimination have to meet a higher burden of proof than workers who face discrimination based on other characteristics like race, sex, national origin or religion.
The 5-4 decision reversed a longstanding rule
For decades a worker needed to prove only that discrimination was a factor–not the main factor. A result of this ruling is that now a worker needs to prove it was the deciding factor in that decision. This decision sent a clear signal to employers: Some age discrimination is perfectly fine. It makes it easier for employers to fire or demote employees based on age.
This is a decision made by a group of people whose jobs are guaranteed for life–regardless of age
In reading this decision, it’s difficult not to be aware of the outsized influence of a group of conservative, over-40 judges on the rights of everyday Americans. The court’s conservative majority, led by Justice Clarence Thomas, threw out what had been a two-step approach. Thomas and a former Monsanto corporate lawyer wrote in the majority decision that “the employer doesn’t have to show it would have taken action regardless of age, even when an employee has evidence that age was a motivating factor in that decision.”
The June 2009 opinion holds that a plaintiff claiming age discrimination must prove the challenged decision was made “because of” age, effectively eliminating “mixed motive” cases where an employee could show that age was one of the motivating factors, but not the sole reason, for the adverse job decision.
June 19, 2009: In the LA Times, a defense lawyer weighs in
“This is a significant and marked change,” said Diana Hoover, a corporate defense lawyer in Houston. “It imposes a difficult burden on the employee. You are not going to have an employer stand up and announce, ‘I’m discriminating against you because of your age.’ ” The ruling comes as concern about age discrimination is rising, especially as companies downsize in the difficult economy. The U.S. Equal Employment Opportunity Commission said the number of new age-bias claims last year rose by 29% from 2007.”
Protecting Older Workers Against Discrimination Act of 2021 (POWADA) Has Passed the House
POWADA is critically needed legislation that would restore fairness by reinstating well-established legal protections against workplace discrimination that were undermined in 2009’s Gross v. FBL Financial Services ruling. 34 Republican lawmakers voted in favor of POWADA, which was a significant move. However, it was unable to move past committee assignment in the Senate, but it has been reintroduced. This legislation is not dead.
Co-sponsors of this bill: Senators Chuck Grassley, Patrick Leahy and Susan Collins.
Endorsers: AARP, American Association of People with Disabilities, Leadership Conference for Civil and Human Rights, National Employment Law Project, National Employment Lawyers Association, National Partnership for Women and Families and Paralyzed Veterans of America.
As more older Americans return to or remain in the workforce, the protections of this bill have never been more important
“The Protecting Older Workers Against Discrimination Act is a bipartisan bill that would finally restore the legal rights of older workers by ensuring that the burdens of proof in age discrimination claims are treated in the same manner as other discrimination claims.” –Rep. Bobby Scott (D-VA)
The Age Discrimination in Employment Act of 1967 (ADEA) was passed to protect those over 40
While it is generally unlawful for employment notices or advertisements to include age preferences, limitations, or specifications, we all know that age discrimination happens all the time. It happens at work and in hiring. It happens when it comes time to lay off workers. When the economy hits the skids it’s the older workers who are often the first to go–they’re often the most expensive, after all. Forget that they’ve been loyal employees who have mentored younger workers and helped build the company and its culture. Discriminatory job postings try to be subtle, but the message is clear. When you see descriptions like “fast-paced environment, “tightly knit group”, “fun and hardworking team”, “tech-savvy”, etc., the implication is that you are too old to fit into these exclusive little clubs.
Sadly, age bias is growing, especially among women and minorities
According to an Equal Economic Opportunity Commission (EEOC) report, over the past 25 years the percentage of workers 55 and older has doubled, jumping from 12 percent of the labor force in 1992 to 24 percent in 2017. The proportion of older workers in the workforce is expected to grow over the next six years, and we can expect rapid growth among workers ages 65 and older.
Women 55 and older are also a growing segment of the workforce. The Bureau of Labor Statistics forecasts that by 2024 there will be twice as many women over 55 in the labor force as women ages 16 to 24.
What you can do about age discrimination: Recommended steps from the AARP
- Talk with your supervisor. This can start with an information conversation, but it’s a step in the right direction. What if your supervisor is the problem? Find an advocate elsewhere in the company. This can also be colleagues who are aware of the discrimination.
- Document the discrimination. Keep a record of each incident. identify the date and describe the incident.
- File a complaint. If there’s a Human Resources department, this is the place to start, or escalate your issue to someone in an authority position.
- Get a lawyer. A lawyer will help you determine if you have a case–not just a grievance, but a case that you can win in court. Lawyers may work on a contingency basis–if you win, they receive a percentage of the judgment.
- Submit an inquiry to the EEOC. Formal complaints are investigated by this organization.
- Consider mediation. The EEOC provides mediators who are neutral third parties and can help resolve disputes.
- File a lawsuit. Before reaching this stage, you should have completed the previous steps to build your case. Before you sue, you must have already filed a complaint with the EEOC. If you don't hear from the EEOC after 60 days, you can file the lawsuit. If you do get a “right to sue” letter, you have just 90 days to take action.
One more note on ageism: Let’s stop sabotaging ourselves
Forget the jokes about wrinkles and walkers. Don’t fuel those assumptions about how older adults can't use cellphones and computers. This becomes a self-fulfilling prophecy. We start to believe assumptions and prejudices about older adults ourselves. Remember that if you don’t know how to use your tablet or computer, there’s nothing wrong with that–you can learn!
Janet Peischel is a rocket50 writer and the Owner of “Being Top of Mind” marketing consultancy. She writes about lifestyle issues, products and trends of the 50+ population. “We represent a huge market that’s vocal, active, and determined to stay active and involved!”
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