Age-Bias Bill Would Ease Burden for Plaintiffs

October 19, 2009 – In The News
Business Insurance

Legislation that seeks to make it easier for employees to prevail in age discrimination cases looks likely to win approval, according to observers. The legislation seeks to overturn the June 2009 ruling by the U.S. Supreme Court in Jack Gross vs. FBL Financial Services Inc. that plaintiffs must prove age was the determinative factor in an adverse job action and not just one of several motivating factors, a decision hailed as a major victory for employers. The court held that the Age Discrimination in Employment Act of 1967, unlike the Title VII of the Civil Rights Act of 1964, does not authorize a “mixed-motives” claim. Instead, plaintiffs must prove age was the “but for” cause of the adverse job action, according to the decision.

The Protecting Older Workers Against Discrimination Act, which was introduced Oct. 6 in the House and Senate, would permit such “mixed-motives” age discrimination litigation. Observers say the older workers legislation has a good chance of passage, although it is unclear precisely when that will happen, given lawmakers' preoccupation with health care and other issues.

Jeffrey Polsky said, “I don't think (the legislation) changes anything in terms of what employers need to do. As always, they need to make sure that they can show a legitimate, nondiscriminatory basis for any adverse employment decision.”

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