This week the New York Times ran an article about the difficulties older workers face in getting a new job after a layoff. Bias against older workers often involves assumptions that an older worker has inadequate technology skills and will refuse to be supervised by a younger boss. The article pointed out the added burden posed by the Supreme Court’s having made it more difficult to prove age discrimination. Unless Congress revises the law to establish a proof scheme similar to that of race and sex discrimination, the New York Times reports that no lawyers take age discrimination cases.
That is an exaggeration. But the Gross decision, which requires an employee to prove that “but for” the age discrimination he would not have suffered the employment action (such as being fired or demoted), does raise the bar. The Supreme Court justices, remember, have no mandatory retirement age and cannot be removed except by impeachment. They may not be able to relate to an employee laid off in the private sector who has to reinvent himself.
Congress does have a bill before it to make the proof standard equivalent to what one has to prove in other kinds of discrimination cases: that the person’s (race, national origin, etc.) was a motivating factor in the decision. Many people have difficulty meeting this burden, given the fact that supervisors are usually trained not to reveal such bias, but this standard fits the ideal that a person’s gender, religion or disability status should not be a part of the decision to hire or fire.