June 4, 2012 – Age Discrimination Claims May Receive Greater Protection
Ever since the Supreme Court decided Gross v. FBL Financial Services in 2009, the accepted notion among employment lawyers was that employees alleging age discrimination would have a more difficult time establishing their claims than those employees alleging other forms of discrimination. In Gross, the Court held that a plaintiff claiming employment discrimination under the Age Discrimination in Employment Act (ADEA) must prove that age was a “determining factor” for the adverse employment action that gave rise to the plaintiff’s lawsuit. In making its ruling, the Court emphasized that the text of the ADEA did not authorize “mixed motive” claims.
The Gross decision brought an almost immediate reaction from Congress. In 2009, lawmakers introduced legislation in the House and Senate, the “Protecting Older Workers Against Discrimination Act” (POWADA), that was aimed at overturning Gross. Despite some apparent interest in this legislation, it failed to advance. On March 13, 2012, a bipartisan group of legislators reintroduced POWADA in the Senate. The proposed legislation again explicitly rejects the Supreme Court’s decision in Gross v. FBL Financial Services and states that plaintiffs need not demonstrate that age was the sole cause of an adverse employment practice to establish claims under the ADEA. The legislation has been referred to a Senate committee for a hearing.
Regardless of whether POWADA is ultimately passed by Congress, the number of age claims filed in state and federal discrimination agencies is likely to continue to increase. Recent surveys indicate that many older employees are choosing to continue working long past the traditional retirement age of 65. An aging workforce can offer valuable experience and wisdom, but with that added value comes an increased risk of age discrimination litigation.