Today an interesting article appeared in The Wall Street Journal by Anne Tergeson titled Age Bias at Work is Harder to Prove.

U.S. Supreme Court Ruling:

Ms. Tergesen writes that age-discrimination claims against employers have skyrocketed in recent years; however, the June 18, 2009, U.S. Supreme Court ruling in Gross v. FBL Financial Services Inc. will make it harder for older workers to win such cases.  The court ruled that employees who sue under The Age Discrimination in Employment Act of 1967 ("ADEA"), that bans discrimination against those 40 or older must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action– widely interpreted as meaning the "sole cause" — of an employer’s actions, rather than one of the "motivating factors".  The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Dan Kohrman, a senior attorney with AARP says that the ruling will make it more difficult to prove age discrimination than to prove unfair treatment at work due to race, sex or religion. "That strict standard could be devastating for even very strong age-discrimination claims," he adds.

In the wake of the ruling in Gross v. FBL Financial Services, legislation was introduced in Congress in October that would override the Supreme Court decision.  The proposed legislation requires older worker plaintiffs to prove only that age was "one factor" behind an employment decision.  If passed, the law would cover all claims filed since the high Court’s June decision, says Cristina Martin Firvida, director of economic security in government relations at AARP. 

Age Discrimination Claims on the Rise:  

According to the U.S. Equal Employment Opportunity Commission, age-discrimination allegations against current, former and prospective employers have hit a high — up 29% to 24,582 in fiscal year 2008, from 19,103 in 2007.  Behind the trend are the recession and the graying of the American work force.   As of June [2009], almost 20% of the labor force was 55 or older, up from 13% in 1999.  When combined with widespread layoffs, "it’s not surprising that a greater number of older people are alleging discrimination," says David Grinberg, a spokesman for the EEOC.

It will be interesting to see how this plays out on the federal side.  This court ruling will not effect age discrimination claims filed under California’s anti- age discrimination laws, nor how California workplace investigators should investigate an age discrimination complaint.  It is interesting to note how federal courts interpreted the Americans with Disabilities Act so narrowly, which prompted Congress to enact all of the new ADA Amendments this year.  I wonder if Congress will react similarly on the age discrimination issue.