Our Human Resources Blog

Age discrimination claims remain a significant source of concern for employers. In 2008, age discrimination charges filed with the EEOC almost exceeded the number of race discrimination charges.  As most employers know, under the Age Discrimination in Employment Act (ADEA) employers are generally prohibited from discrimination against employees who are age 40 or older in terms, privileges or conditions of employment

A recent, controversial Supreme Court case now makes it harder for employees to prove age discrimination in the workplace and easier for employers to avoid liability. The decision is a major victory for the business community.  The employee now bears the full burden in age discrimination cases. The burden of proof never shifts to the employer.

In the case Gross v FBL Financial Services, Jack Gross had been employed as a Vice President of FBL Financial Services for over 30 years. He was "reassigned" as part of a corporate restructuring when he was age 54. Some of his responsibilities were shifted to a younger employee who previously reported to him. Gross sued FBL under the ADEA, alleging he was demoted because of age discrimination. The firm argued that the reassignment was strictly related to restructuring. A federal jury sided with Gross and awarded him $46,945 in compensatory damages. An appeals court overturned the verdict.  In June of this year, the Supreme Court ruled in favor of the employer. They ruled the employee must prove that age was the primary factor, not just one of several reasons resulting in the reassignment to a lesser position.

Even though the Gross decision has enhanced the ability of employers to win age discrimination lawsuits, it's my belief that it is still extremely important for employers to continue to exercise the same caution and make sure they have sufficient supporting documentation when making employment decisions affecting older workers. Just as they do with women and minorities...

Given the large number of older workers and the huge number of adverse employment actions happening in the current recession, it will be interesting to see if Congress will legislatively overrule the Supreme Court‘s decision to confirm with Title VII? (Title VII permits plaintiffs to prove the employer has several motives and the discrimination was a motivating factor in employer action-  putting the burden of persuasion on the employer.) 

One can argue that the fairest decision might be that the burden of persuasion should shift to the employer only when the employee shows direct evidence of discrimination?