Powerful Congressional Leaders Offer New Legislation
to Protect Older Workers
Judiciary Committee opens hearing on how ‘bare
majority’ of Supreme Court has made it more difficult to prove age
discrimination in workplace
Oct. 7, 2009 – Older workers
received good news
yesterday of a Congressional challenge to a Supreme Court decision in
June of this year that many say encourages age discrimination in the
workplace. Senator Tom Harkin (D-IA), Senator Patrick Leahy (D-VT) and
Congressman George Miller (D-CA), introduced legislation they say
restores vital civil rights protections for older workers in the face of
the Supreme Court’s decision.
The three sponsors are heavyweights in Congress:
Sen. Harkin is Chairman of the Health, Education, Labor and Pensions
(HELP) Committee, Sen. Leahy is Chairman of the Senate Judiciary
Committee and Rep. Miller is Chairman of the House Education and Labor
Committee.
The Protecting Older Workers Against Discrimination
Act (H.R.3721) is aimed at
“restoring fundamental fairness in the workplace,” the sponsors say.
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, according to CQPolitics.
The proposed legislation is a response to the
Supreme Court’s June 2009 ruling in Gross v. FBL Financial Services that
plaintiffs claiming disparate treatment under the Age Discrimination in
Employment Act must show that age was the determining factor in the
alleged discrimination, rather than just one of several factors, reports
CQPolitics.
“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. Leahy said the 5-4
decision written by Justice Clarence Thomas was evidence of an “activist
Supreme Court.”
Under the proposed legislation, the burden would be
on the employer to show it complied with the law once a plaintiff shows
age discrimination was a “motivating factor” behind an employment
decision.
The legislation was introduced before a hearing
that opened this morning in the Senate Judiciary Committee, where Jack
Gross, is to testify on his case. At age 54, Gross was transferred to a
new position, which he alleged was a demotion.
“Today's hearing will focus on how a bare majority
of the Supreme Court has overridden statutory protections to make it
more difficult to prove age discrimination in the workplace,” said
Chairman Leahy in his opening statement.
“In two narrowly divided 5-4 decisions, the
majority of the Court threatens to eliminate more of Americans' civil
rights in the workplace, just as it eliminated Lilly Ledbetter's claim
to equal pay, until Congress stepped in this year to set the law right.
“Congress has worked to enact civil rights laws to
eliminate discrimination in the workplace. In 1967, Congress passed the
Age Discrimination and Employment Act with the intent to extend
protections against workplace discrimination to older workers. We
strengthened these protections in the Civil Rights Act of 1991, which
passed in the Senate 93 to five.
“The Supreme Court's recent decisions make it more
difficult for victims of employment discrimination to seek relief in
court, and more difficult for those victims who get their day in court
to vindicate their rights.
“These decisions will encourage corporations to
mistreat American workers in a still recovering economy. For anyone who
doubts that there is conservative activism in our courts and the effects
it is having, they need look no further than the decisions affecting two
of our witnesses, Jamie Leigh Jones and Jack Gross.
“The Supreme Court's misinterpretation of the
Federal Arbitration Act in the Circuit City case threatens to undermine
the effective enforcement of our civil rights laws. When Congress passed
the arbitration act, it intended to provide sophisticated businesses an
alternative venue to resolve their disputes. The arbitration act made
arbitration agreements between businesses enforceable and directed
courts to dismiss any claims governed by such agreements.
“Congress never intended this law to become a
hammer for corporations to use against their employees. But in Circuit
City, the Supreme Court allowed for just that when it extended the scope
and force of the arbitration act by judicial fiat, so as to make
employment contract arbitration provisions enforceable.
“Now, after the Circuit City decision, employers
are able to unilaterally strip employees of their civil rights by
including arbitration clauses in every employment contract they draft.
Countless large corporations have done so. Some have estimated that at
least 30 million workers have unknowingly "waived" their
constitutionally guaranteed right to have their civil rights claims
resolved by a jury by accepting employment, which necessarily meant
signing a contract that included such a clause in the fine print.
“There is no rule of law in arbitration. There are
no juries or independent judges in the arbitration industry. There is no
appellate review. There is no transparency. And, as we will hear today
from Jamie Leigh Jones, there is no justice.
“Today we will also hear from Mr. Gross, whose case
shows that for those employees who are able to pry open the courtroom
doors, the Supreme Court has placed additional obstacles on the path to
justice.
“After spending 32 years working for an Iowa
subsidiary of a major financial company, Mr. Gross was demoted, and his
job duties were reassigned to a younger worker who was significantly
less qualified.
“In his lawsuit under the Age Discrimination Act, a
jury concluded that age had been a motivating factor in his demotion and
awarded him nearly $50,000 in lost compensation.
“A slim conservative majority of the Supreme Court,
however, overturned the jury verdict and decided to rewrite the law. The
five justices adopted a standard that the Supreme Court had itself
rejected in a prior case and that Congress had rejected when enacting
the Civil Rights Act of 1991.
“It is no wonder why Justice Stevens' dissent in
Gross called the decision "an unabashed display of judicial lawmaking."
It is the very definition of judicial activism when a court imposes a
rule of decision rejected by its own precedent and rejected by Congress.
Mr. Gross' justice was taken away when the Supreme Court decided that
age discrimination had to be not only a motivating factor but the only
factor.
“I am concerned that the Gross decision will allow
employers to discriminate on the basis of age with impunity so long as
they cloak it with other reasons.
“As we will hear today from Mr. Gross, age
discrimination too often victimizes workers who have dedicated decades
of service to their employers.
“Older workers, who make up nearly 50 percent of
the American workforce, are particularly vulnerable to discrimination
during difficult economic times. In fact, age discrimination complaints
filed with the Equal Employment Opportunity Commission (EEOC) jumped
nearly 30 percent last year. I fear that in the wake of Gross few, if
any, of these victims will achieve justice. And lower courts have been
applying the rationale endorsed in the Gross case to weaken other
anti-discrimination statutes, as well.
“When President Obama signed the Lilly Ledbetter
Fair Pay Restoration Act into law earlier this year, he reminded us of
the real world impact of Supreme Court decisions on workplace rights. He
said that "[economic] justice isn't about some abstract legal theory, or
footnote in a casebook – it's about how our laws affect the daily
realities of people's lives: their ability to make a living and care for
their families and achieve their goals." He also reminded us that
"making our economy work means making sure it works for everyone."
Oct. 7, 2009 – Older workers
received good news
yesterday of a Congressional challenge to a Supreme Court decision in
June of this year that many say encourages age discrimination in the
workplace. Senator Tom Harkin (D-IA), Senator Patrick Leahy (D-VT) and
Congressman George Miller (D-CA), introduced legislation they say
restores vital civil rights protections for older workers in the face of
the Supreme Court’s decision.
Sen. Kohl calls committee hearing October 21 on
401(k) reforms suggested by GOA report he requested