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Friday, March 30, 2012

Will Congress Fix Stupid Age Discrimination Loophole?

          In most discrimination cases, you only have to prove discrimination was one of the motives your employer had in taking action against you. For instance, if you announce you’re pregnant and are suddenly included in a mass layoff where others with less experience and less stellar reviews aren’t laid off, you have a pregnancy discrimination case. Sure, the need to cut back and restructure was one reason for the company’s decision, but your pregnancy was why they chose you.

It used to be that way in age discrimination cases too, until the Supreme Court in Gross v. FBL Financial 19 Services, Inc. decided the Age Discrimination in Employment Act required age be the only reason for the employer’s decision. I won’t go into the legalese on why they came to this conclusion (you can read more about it in the press release for the bill here), but the effects are devastating to age discrimination cases. 

Theoretically, if you’re laid off right after your 50th birthday, the company could say one reason for picking you was they needed to restructure and they’d win, even if you could prove you were selected due to your age and that younger, less qualified employees were kept. Or, if you thought you were targeted due to both your age and national origin, they might win the age case just because you admit age wasn’t the only reason for their actions.

I’m not saying these arguments would be definite winners, because it’s a bit more complicated, but you can see the kind of ridiculous decisions that can result in age discrimination cases. Not only age discrimination cases are affected; lower courts have applied this same tortured reasoning to disability discrimination cases too.

Fortunately, a bipartisan effort is afoot to fix this stupid judicially-created loophole. The “Protecting Older Workers Against Discrimination Act”  S. 2189 has been introduced to make sure age and disability discrimination cases are treated the same as other types of discrimination, and are not subject to a heightened burden of proof. There were previous attempts since the Supremes made their ruling in 2009 to fix this problem that failed, so it’s not a done deal.

If you think fixing this loophole is a good idea, tell your member of Congress today.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.