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Arthur Delaney
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Chuck Grassley, Tom Harkin Strike Back Against Supreme Court On Age Discrimination

Posted: 03/13/2012 3:50 pm Updated: 03/13/2012 4:50 pm

Age Discrimination
Jack Gross testifying before Congress in 2010

WASHINGTON -- A bipartisan Senate bill introduced on Tuesday would restore older workers' rights in the wake of a 2009 Supreme Court decision that made age discrimination claims more difficult to pursue.

The legislation, co-sponsored by Sens. Tom Harkin (D-Iowa) and Chuck Grassley (R-Iowa), would undo the Supreme Court's decision in Gross v. FBL Financial Group. Legal experts said the decision made it harder for older workers than for other protected groups to win discrimination claims because it effectively required workers to provide direct evidence they had suffered discrimination. Before the decision, a worker had to establish only that age was a substantial motivating factor in a discriminatory employment action.

Iowa resident Jack Gross alleged in a 2003 lawsuit that his company, FBL Financial Services, demoted him that year because of his age, then 54. Nearly seven years later, after a jury had awarded him damages, the Supreme Court overturned his case. The Court's 2009 decision has been cited hundreds of times by lower courts in age bias cases.

Democrats have pursued similar legislation since the decision, but Tuesday's announcement represents the first time Grassley has joined them. The AARP and other senior and civil rights advocacy groups have endorsed the measure.

"The decision in the Gross case has had a major impact on employment discrimination litigation across the country," Grassley said in a statement. "It's time we clarify the law to ensure that other people like Jack Gross aren’t put in similar situations. Older Americans have immense value to our society and our economy and they deserve the protections Congress originally intended."

"Jack Gross's story is unique, but sadly, is not uncommon,” Harkin said. "Prior to the Court's decision in Gross, the same standard of proof applied equally to all workers, regardless of the type of invidious discrimination they faced. Ignoring these consistent standards, the Court’s decision established a far higher standard of proof for age than for discrimination based on race, sex, national origin and religion, without any rationale or justification."

Gross told HuffPost last year it troubled him that courts across the country were invoking his name to dismiss age discrimination claims. He repeated that concern in a statement on Tuesday, but said he was happy about the new legislation from his senators.

"I am grateful and proud to have two tenured and highly-respected senators from my home state of Iowa leading the charge on this bipartisan bill to restore longstanding legal standards," Gross said. "Congress has a long history of working together, on a bipartisan basis, to create a level playing field in the workplace, and I hope they will enact this legislation as soon as possible."

The unemployment rate for workers older than 55 is 5.9 percent, lower than the national average of 8.3 percent. But older workers who were unemployed in February were out of work longer than anyone else at an average duration of 52.2 weeks, compared with 36.5 weeks for their younger counterparts.

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