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
Pensions Committee (D-IA)
Dear Senator Tom Harkin,
Thank you for your courageous stand on the age discrimination issues facing aging American workers. e Protecting Older Workers against Discrimination Act, legislation you 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.
Senator Harkin, we implore you to further investigate ageism issues in this country
and we believe you will find that for 3 decades; age discrimination has grown
to epidemic stages and been swept under the rug out of fear of retaliation .
It is common knowledge that over the last two decades, Human Resources professionals and attorneys have become specialists in EEOC laws and easily manipulated loop holes to their with advantage.
Now that the Court has opened the door to discrimination against older workers; Congress needs to close that door; your support is even more important than ever before.
The Gray Matters Coalition website will be following these issue and posting
The findings for our supporters.
Joan Freeman, Director ® a coalition to end age discrimination. email: joanfreeman1@aol.com
“The Shelf Life of the American Worker" on http://www.GrayMattersCoalition.com
1. When should a small business be required to keep a less-efficient employee at a higher pay when it can hire a more efficient employee at lower pay?
2. What if an older worker costs more to a business than they generate for the business?
3. What business is it of anyone other than the company who is hiring what metrics they use to determine who to hire, fire, etc? Shouldn't the company have the most insight as to the requirements of the job?
I'm sympathetic to the needs of older workers, and I applaud Senator Harkin for beginning the discussion. What troubles me is the possibility that we start requiring companies to be more inefficient and cost-laden, to the detriment of the company and the other workers (see GM and their burdenous obligations, and how that turned out for them). I'm all for fairness, but not at the expense of competitiveness and survival.
However, the need for "streamlining" isn't always malicious. If a business fails, it takes all of the employees with it. Instead of losing a few workers due to "streamlining," a business may have to lay off all workers because they're legally prevented from firing higher-paid, lesser-efficient (older) employees. The net result is less people employed overall, including the older workers.
How do you balance that effectively through policy?
I know. Life's not fair, but I am SICK of being considered 'not of US' because of when I was born.
Good luck. (and what in the world is up with Grassley? Seriously, from Iowa and VERY embarrassed by him)
The insult is worse when I recall that ALPA had signed a contract with JAZZ to allow pilots in Canada to fly past age 60. At the same time ALPA was telling Congress that it was unsafe for US pilots to fly after age 60. I guess that the cold weather keeps the Canadians from aging as much as US pilots. It is even more outrageous when you understand, that the way this was handled made sure that almost ALL the Vietnam era veterans were purged from their jobs. Almost 90% of pilots of my age are Vietnam vets. THANKS for our service, right?