Fifteen months ago, the Supreme Court’s conservative majority mowed past statutory language, Congressional intent and decades of precedent to make it much harder for older workers to prove age discrimination.
Under the 5-to-4 ruling, it is no longer sufficient for employees claiming illegal age bias to show that age was a motivating factor in their demotion or layoff. They must show that age was the decisive factor, an unfairly tough standard of proof and a major watering down of older workers’ civil rights.
Fortunately, the court’s mangling of the Age Discrimination in Employment Act of 1967 need not stand. Legislation introduced last fall by Senator Tom Harkin of Iowa and Representative George Miller of California, both Democrats, would reverse the ruling, once again making the standard for proving age discrimination equivalent to the standard for proving discrimination on the basis of race, sex, religion and national origin.
Once a worker showed age discrimination was a factor in his or her treatment, an employer could still win by showing it would have made the same employment decision, regardless of the worker’s age.
So far, the measure has attracted no Republican co-sponsors. But standing in the way of fair treatment of older workers is bad policy and bad politics, especially at a moment of soaring unemployment and rising age discrimination claims. This is one of the few areas where progress should be possible even in the charged lead-up to the midterm elections.
In fact, talks are under way among business and civil rights groups, advocates for older people, including AARP, and lawmakers of both parties that could potentially result in a deal on good remedial legislation.
Meantime, the problem is spreading. Some lower federal courts have read the Supreme Court’s ruling to raise the bar for employment claims under other statutes, including the Americans With Disabilities Act and the Family and Medical Leave Act.
Prompt Congressional action is needed to contain the damage.
This article was produced by the New York Times