In an extremely surprising and disappointing decision, the Supreme Court ruled last week in favor of an employer in an age discrimination case. The 5-4 decision showed the deep divide between the two sides on the issue, with the majority ruling that the employee must show that age was the primary factor in a wrongful employment action. The burden of proof of this discrimination falls on the employee bringing the claim, and not on the employee.
Clarence Thomas, speaking for the majority stated that “the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age…even when a plaintiff has produced some evidence that age was one motivating factor”.
The case was Gross v. FBL Financial Services, where Jack Gross was effectively demoted in title and responsibility, with part of his work load going to a younger female employee who used to report to him directly. Gross brought a case against FBL Financial, and was awarded $46.945 by the jury. On appeal, this award was overturned, leading to the Supreme Court fight.
This is a very disappointing sign for working Americans, especially as the workforce continues to get older. Businesses are now more empowered to let go of older workers as costs rise, and replace them with younger and cheaper employees.
This conservative bench has been no friend of workers, ruling first against Lilly Ledbetter in her case against Goodyear fighting for pay equality. In that case, Congress stepped in to correct the law and work to ensure equal pay for men and women. Hopefully, Congress will take the right step here and shore up the rights of older workers.
Just like other forms of discrimination, age discrimination is no more tolerable in our society than others and we should stand up for older workers.