Age Discrimination Gets Attention Of Congress
May 14th, 2010 | Ellen Simon
Hearings Held On Federal Discrimination Bill To Overturn Gross Decision
Last week, both the House and Senate held hearings on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756). The legislation would overturn the awful Gross v. FBL Financials Services, Inc. case decided by the Supreme Court last year. If passed, the bill will apply retroactively to all cases pending on or after June 17, 2009, the date of the Gross decision.
Simply stated, the Gross decision holds age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove that their age was the “but for” cause of the employer’s adverse decision instead of “a motivating factor.” I predicted, as did others, that Gross would get a Congressional fix and that’s exactly what POWADA does – and more. 
For one, POWADA allows the plaintiff to win an age discrimination case by proving that:
(A) an impermissible factor under the Act (the discrimination statute) was a motivating factor for the practice complained of — even if other factors also motivated the practice, or
(B) the practice complained of would not have occurred in the absence of an impermissible factor.
The legislation also establishes that:
- standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same
- the plaintiff can choose the method of proof for the case, including the McDonnell Douglas framework
- employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases
The Act explicitly states that the standard for proving unlawful disparate treatment under the Age Discrimination in Employment Act of 1967 and other anti-discrimination and anti-retaliation laws is no different than the standard of proof under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.
In other words, all plaintiffs in discrimination cases will be held to the same standards of proof and will be able to prove their discrimination cases in the same way. While this is most certainly what Congress intended in the first place, it will be very beneficial for all of us who litigate these cases — and our clients — to have these evidentiary matters settled once and for all.
image: www.conversantlife.com/files/imagecache/blog_wizard/files/blog_wizard/proof.png
*This post originally appeared in Employee Rights Post on May 9, 2010. Reprinted with permission.
About the Author: Ellen Simon: is recognized as one of the leading employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.
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Tags: ADEA, age discrimination, Civil Rights Act of 1991, Ellen Simon, evidence, Gross v. FBL Financial Services, legislation, McDonnell Douglas v. Green, Title VII
May 16th, 2010 at 1:23 pm
What happened to employer rights? If I provide the capital, the facilities, the compensation; or in other words the “job”, why should I not be able to hire/fire/promote/demote or whatever whoever I want?
The may sound like I am prejudiced but it is not. I want my business to succeed. I want to make a profit. If I don’t I will be out of business and have no jobs for anyone else.
So why is the government involved in telling me who I can hire or fire? If I am so stupid as to not maximize my employment dollars for success (as I see it) my competitors will and my business will suffer. That is the free market, the invisible hand. Government interference does not make it work better but makes the market inefficient.
Let’s take an example. I have a major new product coming on line. It will take a year to train someone fully. I expect to use that product and its derivations for 10 plus years. I have two people who have the right set of innate abilities to absorb the training. One is 63 the other is 33. All other things being equal who should I train? If I pick the 33 year old because they can be with me for ten years have I discriminated against the 63 year old?
Sounds like that is what Ellen thinks. Under her and congressional intent I may have. In my opinion it was just a good business decision.
One man’s feast is another man’s garbage.
We need to keep the government where it belongs. Protecting our borders, building our highways, negotiating international treaties, not micro managing the most successful market economy in the world. Government intervention is the best way I know of to kill the golden goose.
May 16th, 2010 at 11:57 pm
Charles,
You are not solely responsible for the capital you bring in or the facilities you run.
You’re not special because you help people get jobs. You are just as reliant on the people you hire to help you turn a profit as you are on providing them compensation.
Instead of looking at this as a conquering king, whose serfs should be grateful you exist, try actually considering what it is to be a serf; that is to say, if a 63 year old can still perform at the productive level as a 33 year old, he or she shouldn’t get the axe just because they won’t be around much longer – after all, there is no guarantee the 33 year old will be around for the duration you need.
As far as the government not interfering with the economy… I think its you who needs to learn just how much the economy relies on government. Certainly the private sector is visible, but I think you’d be surprised how much it relies on Uncle Sam.
May 18th, 2010 at 11:34 am
Darek:
If I am not supplying the capital for my business I would like you to point out who is, I want to collect his share. I own my business, I own my building. I created the business. I went out and found clients. When it got big enough I hired people to do jobs to help the business grow and make me richer. The best of them I provided equity to make them rich as well.
The reason I have my own business is because I got tired of working for other people. I hated my livelihood and my family’s welfare depending on the whim of somebody else. So I took advantage of the American dream and started my own business, several times.
If someone doesn’t want to work for me I cannot make them stay. So why should I have to keep someone I don’t want.
People are not serfs they have choices. Why would you insist that I defer to their wants and needs, they don’t to mine, should I be a serf to them?
As for the economy relying on the government that is the problem. Keynesian theory has been pretty well discredited. Try reading Hyack instead.
May 19th, 2010 at 11:01 pm
Charles,
You’re not one of those ‘businessmen’ who startup companies only to sell them when they reach a certain asking price, are you?
This ‘American dream’ you speak of is just that – a dream. It is impossible for everyone to ‘make it’ on their own – even if everyone was talented enough – for the same reasons every one of us cannot be a homeowner. Just because you happen to hit a homer doesn’t make you special – no more so than those who have failed in their endeavors, anyway, but certainly not special enough to then play king and do with what you will with other peoples’ livelihoods.
Again, if the 63 year old is just as productive and has given you some quality time over the years… why not ’see him out’ with dignity, instead of with an axe.
You’ve already conceded that to be successful, you need the help of others to reach further steps – thats all I need to hear to support with regard to you not *solely* being responsible for capital. Its a team effort, even if you are wearing the ‘C’. By the way, this doesn’t even consider what people you need to work with to get things off the ground.
Regarding the economy – nothing is discredited and then actually applied – so as much as I’m sure you’d love to think of Keynes’ theory is bunk, actual economists will disagree.
Thanks for the tip, though I’m aware of Hayek. Not bad, but we’ve seen the logical pathways, and Reagan and Thatcher have turned out to be exactly what we don’t need to see again. Strange you would be a supporter, though, given his rather soft stance on laissez-faire capitalism.
Since we’re name-dropping, check out Elinor Ostrom’s work.
June 16th, 2010 at 9:42 pm
Dear Ellen Simons,
Thank you for the out standing coverage on age discrimination and the issues facing the American worker.
Discrimination in the work place is a national disgrace and for 3 decades out of fear or retaliation has been swept under the rug. Now that 74million boomers are 50 and older age discrimination will soon take on a life of its own.
We implore you to further investigate ageism in this country and bring it to the forefront of national attention.
Joan Freeman Director, Gray Matters Coalition JFreeGMC@aol.com (www.GrayMattersCoalition.com )
GMC is a newly formed grass roots special interest group committed employment reform, ending age discrimination, and more fully protecting the rights of workers age 50 and older.
Please read “The Shelf Life of the American Worker” on our site that describes the predictable work cycle of American’s.
September 29th, 2010 at 7:30 pm
I have a age discrimination cases going on now in va. It is great to have a site like yours to learn from i am doing mine pro se so any help is great Thanks Steve
November 23rd, 2010 at 12:27 am
Mikethejeweler@aol.com writes:
to the National Employment Law Project
I need a lawyer with disability’s to represent me on a contingency
I am a person with disability & i proffer a lawyer with disability’s to represent as this case is now not only about age discrimination but from the actions of the defiance lawyer it is now in addition a case as Mr. gehring in court documents has deemed all disabled people as worthless rather then additionally challenged.
I world be more then happy to have the help from any disabled lawyer regardless of any challenges thy may have as long as they are above ground & alive .& breathing with a pulse & able to speak
I don’t care if they have one arm or leg or missing any part .
I don’t even care if they are quadriplegic.
I don’t want Mr. gehring or the defendants to feel treated in any way by the appearance of what a delusional person may deem as an able body lawyer that would detract any & all attention from what is the real truth & facts of my case.
I rather them feel threatened by my overwhelming amount evidence to support my case of age discrimination & added charges of disability discrimination.
the pro se discrimination that I have inured from the system prevents me from being plaintiff pro se as the court has tided my hands behind my back & blocked my every move as well violated all my all civil rights deeming me less of a person then even Miranda rights even Theo I was born in the divided states of America.
I thank you in advance
repeatedly victimized
mike Halpert
Tel 646 329 6160
mikethejeweler@aol.com
December 27th, 2010 at 1:57 am
Yes I have a question. I have been unemployed for a couple of months and have applied at over 400 jobs. I went into the Mall of Jackson Tennessee into Abercrombie & Fitch and ask was they accepting applications and was told ya, but this guy that worked there told me that he wouldn’t give me one because of my body structure. And i told him “what does that got to do with anything” and he replied back ” They do not hire people of your kind” What can i do with this? Can i turn that company in for discrimination?
My Number is 731-694-2068
August 12th, 2011 at 5:14 pm
The 33 year old will probably not be around for ten years. People are so smug to think that the job is so hard it cannot be mastered in two weeks. I know I would do a better job than most kids but I don’t even get tested. i would welcome the chance to go head to head with someone much younger. I know that I would beat most of them in say, an excel skills test. Just cause they know how to write LOL on twitter really is meaningless. But a lot of times the bosses who are my age do not know how to do it, therefore, they assume I am as luddite as they are when I have been adapting to new technology every day since the 80’s.
But Mr. Perfect would not hire me because he wants someone perky with a nice smile….and that is fine for a modeling agency receptionist job (we get that this is a job which requires youth).