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Congress Must Act to Rectify Supreme Court Age Discrimination Ruling, Witnesses tell House Panel

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Location: Washington, DC

Congress should pass legislation to overturn a U.S. Supreme Court decision that has made it more difficult for older Americans alleging employment discrimination to get their day in court, witnesses told the Health, Employment, Labor, and Pensions Subcommittee today.

The Protecting Older Workers Against Discrimination Act, introduced in October 2009, would restore vital workplace protections under the Age Discrimination in Employment Act (ADEA) of 1967 to what they were before the Gross v. FBL Financial Supreme Court decision. The 5 to 4 ruling has resulted in victims of age discrimination facing a higher legal burden of proof than those alleging race, sex, national origin or religious discrimination.

"Today we heard testimony calling on Congress to reject the Supreme Court's misguided decision in the Gross case and restore justice for American workers of all ages," said U.S. Rep. Rob Andrews, chair of the subcommittee. "Older workers, who are already struggling enough to keep their jobs in this economy, deserve the same protections as those discriminated against on the basis of race, ethnicity or religion. The Supreme Court turned decades of well-established law on its head when it held that age discrimination is permissible if it is merely a motivating factor in an adverse employment decision. H.R. 3721 prevents claims like Mr. Gross' from being dismissed based on sheer semantics and guarantees that all legitimate victims of age discrimination will not be shut out of the courthouse."

In 2003, Jack Gross was demoted by FBL Financial with lower pay and his duties were reassigned to a younger colleague. Gross claimed that the demotion was because of his age. A jury agreed that the company unlawfully demoted him and awarded him $46,945 in back pay. However, an appeals court overturned the verdict, which was reaffirmed in a June 2009 Supreme Court decision written by Justice Clarence Thomas.

"The court essentially hijacked my case and used it as a vehicle to water down the ADEA, a law written by the branch of government closest to the people," said Gross. "Editorials and bloggers dubbed me this year's Lilly Ledbetter. I take that as a compliment."

Last year, President Obama signed the Lilly Ledbetter Fair Pay Act, which overturned a 2007 Supreme Court decision that severely restricted the rights of employees to challenge unlawful pay discrimination based on gender.

In Gross's case, a narrow Supreme Court majority said that it was not enough to show that age was a motivating factor of the employer's discriminatory action, but a plaintiff must show that age was the "but-for' reason to win a case. The new standard made it more difficult for older workers to hold employers accountable than those alleging race, sex, national origin or religious discrimination. In his dissent, Justice John Paul Stevens wrote that the majority of the court had "engaged in unnecessary lawmaking."

"[The Supreme Court decision] undermined Congress's legislative intent and immediately impacted older workers, relegating them to second-class status among victims of discrimination," said Michael Foreman, director of the civil rights appellate clinic at Penn State's Dickenson School of Law. "Congress should take positive steps to ensure that our civil rights and employment laws protect all American workers."

Witnesses testified that these protections are especially important for older workers because they often face an uphill battle of holding onto jobs in a struggling economy and can have a harder time finding new employment opportunities -- often at lower pay than their previous jobs.

"Once out of work, older job seekers face a prolonged and often discouraging job search," said Gail Aldrich, member of the board of directors of the AARP. "Once out of work, older persons are more likely than the younger unemployed to stop looking for work and drop out of the labor force. If they do find work, they are more likely than younger job finders to earn less than they did in their previous employment."


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