Supreme Court Renders Age Discrimination Impossible To Prove

Many workers tend to believe that long tenure, a good work ethic and loyalty will be rewarded by their employer.  Instead of jumping ship, many have stayed at a particular company with the reliance that such allegiance will reap long term benefits. The Supreme Court just shattered such job security by making it more difficult for older workers to prove age discrimination.

The Supreme Court in Gross v. FBL Financial Services, reversed a long standing rule and burden of proof in age discrimination cases. In the past, if the federal appellate court found that a worker could show that age was a factor in the employer’s decision to implement a layoff or terminate the employee, then the burden would shift to the employer to show that it had a legitimate basis for the termination or layoff.  The Supreme Court threw out the two step approach and instead held that the employee has the full burden of proof to show that age was the deciding factor in the dismissal/termination.    

The obvious problem with the Supreme Court’s decision is that is almost impossible for an employee to find proof sufficient to show that age was the underlying factor in the decision to terminate the employee. Taken to a logical extreme, in order to make a claim, the employee must find a smoking gun memo from their employer saying that they are discriminating against the employee because of age. The chances of that happening are slim.

This ruling should be surprising given the ages of the justices on the Supreme Court.  But then again, Supreme Court justices are appointed for life or until they choose to retire. Maybe if the justices had to worry about being dumped by a younger replacement, they would take their dentures out of the cup and do the right thing.     





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  • While the burden of proof holding is new, the point that it is not age discrimination to lay off the most expensive workers is not, and those generally are the older ones. Hence, the employers were able to meet the former shifting burden of proof, anyway.

    Of course, some companies just close their "most expensive facilities," thereby coming up with an age matrix that satisfies the law, although not the terminated employees. If a company wants to outsource the work to independent contractors or overseas, there isn't much in the Age Discrimination In Employment Act to deal with that.

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