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Ensuring Fairness for Older Workers

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Yesterday morning, the Committee on Health, Education, Labor and Pensions heard testimony from a variety of witnesses on a pressing, national issue -- the need to ensure fairness for older workers. We heard from the chair of the Equal Employment Opportunity Commission and a leader from AARP, who both described the national implications of this issue. But I was most taken by the testimony of a remarkable Iowan named Jack Gross, who has become a central national figure in the fight against age discrimination.

Jack worked for nearly a quarter century as a claims adjuster for FBL Financial in West Des Moines. He was a model employee, with performance reviews in the top three percent of the company for 13 consecutive years. Then, in 2003, when he was 55 years old, his company brazenly demoted him and other employees over the age of 50. His job was give to a much younger, less qualified person.

Four decades ago, expressly to prevent this kind of discrimination, Congress passed the Age Discrimination in Employment Act. Very simply, that act made it unlawful to discriminate on the basis of age.

When Jack sought enforcement of his rights, a jury of fellow Iowans readily found in his favor. But, last year, the Supreme Court ruled against Jack and other older workers. A narrow majority on the Court didn't just rewrite the rules, it arbitrarily rewrote the law.

For decades the law was clear: If an employee showed that age was one factor in an employment decision, the burden was on the employer to show it had acted for a legitimate reason other than age. The Court, however, addressing a question it did not grant cert on, tore up this decades-old standard and imposed a new standard that the Supreme Court itself had rejected in a prior case and Congress had rejected when we enacted the Civil Rights Act of 1991. In its place, it invented a new standard that makes it prohibitively difficult for a victim to prove age discrimination.

According to the Court's new standard, a victim of age discrimination bears the full burden of proving that age was not only a motivating factor but the decisive factor.

This extremely high burden of proof has radically undermined older workers' ability to hold employers accountable. Bear in mind that unlawful discrimination is often difficult to detect. Those who discriminate usually go out of their way to conceal their true intent. And discrimination cases rarely involve a smoking gun.

The good news is that the Court's arbitrary ruling is not the final say. Congress has the power to step in with a legislative remedy. That's what we did when the Court weakened the rights of women in the workplace. Last year, we passed the Lilly Ledbetter Fair Pay Act.

Likewise, nearly two years ago, we passed the ADA Amendments Act, reversing Court decisions that weakened the Americans with Disabilities Act.

Now the Court has opened the door to discrimination against older workers. And Congress needs to close that door.

The Protecting Older Workers Against Discrimination Act, legislation I introduced last year, will restore the law to what it was for decades. It makes clear that when an employee shows that discrimination was "a motivating factor" behind a decision, the burden is properly on the employer to show it complied with the law.

This legislation would make certain that, once again, Jack Gross and all older workers in this country enjoy the full protections of the law.


Senator Tom Harkin (D-IA) is Chairman of the Senate Health, Education, Labor and Pensions Committee

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