Legislative Remedy to Gross v. FBL Financial Services Introduced

As instances of age discrimination are on the rise with the graying of the baby boomers, proving such complaints got tougher after Gross v. FBL Financial Services.
The 2009 U.S. Supreme Court decision effectively raised the standard of proof in such cases to the point that it was no longer enough for plaintiffs to show that discrimination based on age was a motivating factor in an adverse employment action, even if it was one of many. The slim majority of justices ruled that plaintiffs would have to prove that the employer would not have taken the adverse action “but for” the worker’s age.

Our Boston employment attorneys recognize that this put a halt to many age discrimination actions across the country as workers weighed whether such litigation was worth it. Even when age plays a prominent role in an employer’s decision, proving it can be another story.

(It’s worth noting that a similar U.S. Supreme Court decision earlier this year in University of Texas Southwestern Medical Center v. Nassar applied these same harsher standards to cases of discrimination based on race, sex and national origin.)

Now, lawmakers are trying to undo some of the damage in the form of the Protecting Older Workers Against Discrimination Act (POWADA). The bipartisan effort is sponsored by U.S. senators in Iowa and Vermont, with a companion House bill introduced by a lawmaker in California. The measure is strongly backed by the AARP, a non-profit, non-partisan organization advocating for those over the age of 50.

POWADA would effectively reverse the Gross decision and return the standard of proof to the earlier guidelines.

This measure is especially timely and relevant. In 2007, about 28 percent of the workforce was comprised of employees over the age of 50. By 2016, that figure will shoot up to more than a third.

This coincides with a trend, compounded by the economic crisis in recent years, of older workers remaining longer in the workforce. Many have been left with little choice, as they watched their nest egg dissolve when the real estate bubble burst. Others found themselves a victim of mass layoffs that left them with little choice but to delve into retirement savings to stay afloat. Many may have regained their financial footing, but they aren’t in a position to retire as soon as they had hoped.

Others are simply enjoying the sustained long-term health that modern medicine brings, and don’t want to give up careers in which they find a greater sense of purpose and meaning.

Firms would do well to value the contributions of these experienced workers. Unfortunately, too many view age as a negative attribute and may look for excuses to shed older workers.

Such actions aren’t always blatant. Rare is the age discrimination case where an employer will say, “I’m firing you because you’re too old.” Instead, you’ll find that perhaps your hours are unceremoniously cut or you are reassigned to a less desirable post without any real explanation, only to be replaced by someone who is far less qualified – i.e., who earns a lesser salary.

The Brown Law Firm, LLC, has offices in Belmont and Boston. For a free and confidential consultation, call 617-489-0817 or contact us online.

Additional Resources:
AARP Strongly Supports Bipartisan Bill To Fight Age Discrimination, July 30, 2013, Press Release, AARP
More Blog Entries:
Massachusetts Discrimination Lawsuit Results in $7M Victory, Aug. 6, 2013, Boston Age Discrimination Lawyer Blog

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