Harkin works to Ledbetter-ize discrimination against older workers

It worked for Lilly Ledbetter and the Fair Pay Act, so why not for victims of discrimination on the basis of age?

U.S. Sen. Tom Harkin, chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, has joined with two other influential committee chairmen to introduce a bill that takes direct aim at a U.S. Supreme Court decision regarding age discrimination in the workplace.

The Supreme Court case, Gross V. FBL Financial, involved Jack Gross, a then-54-year-old employee of FBL. He filed an age discrimination suit after he was transferred and demoted within the company. A lower court awarded him $47,000, but the U.S. Supreme Court, in a 5-4 decision, nullified the award and set a higher standard for those who wish to file age discrimination suits.

“For decades we have had a consistent standard, whether based on race, sex, national origin, religion or race. The Gross decision established a far higher standard of proof for age than for other forms of discrimination, without any rationale or justification,” Harkin said. “Today we introduce the Protecting Older Workers Against Discrimination Act with the simple purpose of reversing the Court’s decision and restoring the law to what it was for decades. We intend to make certain that, once again, Jack Gross and all older workers in this country enjoy the full protections of the law.”

The court ruled that it is no longer enough for a victim of discrimination to prove that age was a motivating factor in an adverse employment decision. A worker must prove that age was the decisive factor, a stricter legal burden than what is required for those alleging race, sex, national origin or religious discrimination.

In the dissenting opinion, Justice Paul Stevents said the ruling was “an unabashed display of judicial lawmaking” that proceeded with “utter disregard of our precedent and Congress’ intent.”

The trio of lawmakers who have introduced the legislation also noted that the climbing unemployment rate has hit older workers especially hard — with most reports indicting that there are two million jobless workers over the age of 55. According to the Equal Employment Opportunity Commission, nearly 25,000 age discrimination claims were filed in 2008, a 30 percent increase from 2007.

“The same conservative Supreme Court justices responsible for the backward ruling against Lilly Ledbetter have now thrown another legal barrier in front of hard-working older Americans,” said U.S. Rep. George Miller, chairman of the House Education and Labor Committee. “Workplace discrimination based on age is just as wrong as discrimination based on any other irrelevant factor — and it should be treated as such in the court of law. The Protecting Older Workers Against Discrimination Act will ensure that all workers are treated fairly and not subject to decisions based on an employer’s prejudice, especially in this difficult economy.”

The proposed legislation reverses the Gross decision and restores the law to what it was for decades before the Court rewrote the rule. It makes it clear that when a victim shows discrimination was a “motivating factor” behind a decision, the burden is placed with the employer to show that it complied with the law. The bill, according to the three sponsors, is modeled after the the Civil Rights Act of 1991, which passed the Senate on a non-partisan vote of 93-5. It is supported by the AARP, the Leadership Conference on Civil Rights, the National Senior Citizens Law Center and the National Women’s Law Center.

In the Ledbetter case, the U.S. Supreme Court ruled that Ledbetter — and other workers — had no right to sue for a remedy in cases of pay discrimination after more than 180 days following the first paycheck, even if pay discrimination was not discovered until years later. It took Ledbetter nearly 20 years before she discovered that she was being paid less than men doing the same job.  In January, the Fair Pay Act was the first legislation signed by Pres. Barack Obama. It was also the target of two veto threats from Pres. George W. Bush before he left office, and had to overcome an attempt by Republican senators to block voting on the bill.