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
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
If you think fixing this loophole is a good idea, tell your member of Congress today.
See more employment law posts on Donna
Ballman's blog, Screw You Guys, I'm Going Home.
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