Age Discrimination is up, so is the proof requirement

Age Discrimination is up, so is the proof requirement

According to the Washington Post, the Equal Employment Opportunity Commission held a meeting yesterday to address the phenomenon of skyrocketing age discrimination claims.

Age claims in 2008 outstripped 2007 claims by 30%.  There is no reason to expect that 2009 will be much different.  The biggest difference will be the enhanced difficulty of proving the claims.  In the last weeks of its term, the Supreme Court issued several important decisions of interest to employment law practitioners.  One of them had less newsworthy facts than the white firefighters case, but will have a far greater impact.  In Gross v. FBL Services, the Supreme Court raised the level of proof needed by a discrimination claimant under the Age Discrimination in Employment Act.  The Court unaccountably decided that the burden of proof for age discrimination plaintiffs should be higher than that for victims of race, sex, national origin or religious discrimination.  These cases are difficult to make into headline news, but the reality is that most workplaces are free of open and hostile discrimination.  Every educated person knows better than to spout racist invective.  That does not mean that we are truly in a post-racial society, but rather that much of the bias has gone underground.  The difficulties of proving that, “but for” the age of the worker, he or she would not have been fired can be insurmountable.

Age discrimination is an odd kind of bias, since it’s not based so much on “otherness,” as racial discrimination might be, as on assumptions that older people are slower, less technologically oriented, or simply in the way of the progression of the young.  I have long thought that federal judges, especially, have trouble understanding the dynamic of age discrimination, since they are usually rewarded for their experience and seasoning.  No one makes a federal judge retire, and no one (except perhaps a peer) dares to suggest that he is losing any competency.  They are almost without supervisors, so they do not have the experience of having their territories restructured, their direct reports reassigned, or other sly methods of interfering with their performance.  When these changes are designed to interfere with performance, or have the effect of reducing an older person’s performance ratings, age discrimination may be the motivation.  But in these economic circumstances, when restructurings and reductions in force are commonplace, it is not going to be easy to prove bias.

In an earlier era, when the Supreme Court tipped the scales toward employers, Congress reacted with the Civil Rights Act of 1991.  Perhaps Congress will take the reins again.

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