Access To Justice

News developments that we’ll be watching at Sokolove Law:

Popular ulcer drugs Nexium, Prevacid and Protonix can be found in millions of American medicine cabinets. Now, two new studies link these drugs and other proton pump inhibitors to a greater risk of bone fractures in women and to the increased risk of contracting a bacterial infection that causes severe diarrhea, according to Bloomberg News. The studies were published in the Archives of Internal Medicine. Bloomberg reports that one study found the risk of fractures increased by about 25 percent in older women who took the drugs versus those who did not; the other study reported that patients who took a daily dose of these medications developed 74 percent more infections with the diarrhea-causing bacterium Clostridium difficile.

The Consumer Product Safety Commission (CPSC) said it will enact a mandatory safety standard before the end of the year that will ban the sale and manufacture of drop-side cribs, which have been linked to the deaths of at least 32 young children in the past decade. The cribs may be responsible for another 14 deaths but the CPSC staff could not conclusively determine whether or not the drop side was involved in those incidents. In the last five years, CPSC has announced 11 recalls involving more than 7 million drop-side cribs due to suffocation and strangulation hazards created when the drop side detaches. Just last month safety regulators recalled drop-side cribs by Simplicity and Graco.

Nearly a year has passed since the U.S. Supreme Court issued a decision making it harder for workers to win an age-bias suit. Now, two Capitol Hill lawmakers are working to pass legislation that will reverse the High Court’s ruling. The Sioux City Journal reports that two Iowa congressmen, Sen. Tom Harkin and Rep. Dave Loebsack, are pushing bills in the U.S. House and Senate to restore protections that were stripped from older workers by last year’s Supreme Court decision, Gross v. FBL Financial. The ruling overturned federal age-discrimination legislation that put the onus on employers to prove they had not discriminated on the basis of age, writes the Journal. Harkin chaired a Senate Health, Education, Labor and Pension Committee hearing on a bill to protect older workers this week.

I recently celebrated my 65th birthday, and that may explain why I continue to be outraged that we tolerate age discrimination in this country.  When it comes to firing people because they are older, you might say I’m a little biased!

As I’ve written before,  in June, 2009, Supreme Court Justice Clarence Thomas, writing for a split 5 – 4 Supreme Court, held that the federal Age Discrimination in Employment Act would not apply if age was only one motivating factor behind an employer’s action.  The Court held that employees would have to show that age was the decisive factor behind the employer’s action to be successful.

Iowa Senator Tom Harkin is sponsoring the bill that would reverse the ruling.  Harkin’s bill should pass. Here’s why:
Prior to the SCOTUS decision, you could sue under ADEA, if part of the reason you were fired was because of age discrimination.  But the Court ruled that now employees would have to prove that age discrimination was the key reason why they were fired.  It essentially made the burden of proof in age discrimination case  extremely difficult to reach.

I recently came across a great editorial in the New York Times that makes the case for change quite nicely.  The piece quotes Justice Thurgood Marshall, a brilliant jurist and celebrated champion of civil rights:

“To be rejected on account of old age may or may not feel the same as being rejected on the basis of race or sex. But it is clearly unjust and dehumanizing, and the law should take it more seriously than it does.”

Amen Justice Marshall.  Age discrimination is wrong, and we should not be putting up barriers to people who have been discriminated against.  We should be throwing the court house doors open and encouraging them to bring suit.

In June, Supreme Court Justice Clarence Thomas, writing for a split 5 – 4 Supreme Court held that the federal Age Discrimination in Employment Act would not apply if age was only one motivating factor behind an employer’s action.  The Court held that employees would have to show that age was the decisive factor behind the employer’s action to be successful.

It was a stunning decision in favor of employers. Another called the decision a “big win for employers” and yet another called it “surprising”. Yet, even at the time of the decision, lawyers for employers seemed like they knew the victory would not stand up.   “It’s a good decision for employers, unless Congress opts to deal with it,” said one lawyer.

Here’s what the court did in a nutshell.  Prior to the decision, you could sue under ADEA, if part of the reason you were fired was because of age discrimination.  But the Supreme Court ruled that you had to prove that now employees would have to prove that age discrimination was the key reason why you were fired.  It is essentially made the burden of proof in age discrimination cases, extremely difficult to reach.

That’s where Congress comes in.  At the time of the ruling, Senator Patrick Leahy (D-Vermont) chair of the Senate Judiciary Committee said: “In the (SCOTUS) decision today, five justices acted to disregard precedent and ignore plain meaning…of the (ADEA) that Congresss passed.”

But Congress was not content with being outraged!

Now, a new bill pending in the Congress would overturn Thomas’ decision and allow older workers to sue if age discrimination was one of several factors that lead to their being fired.  Iowa Senator Tom Harkin is sponsoring the bill that would reverse the ruling.

This is the second time this year; Congress has passed a law related to worker’s rights that had the effect of overturning a SCOTUS decision.  Earlier this year, Congress passed the Lily Ledbetter Fair Pay Act which extended the statute of limitations for fair pay claims for people who are discriminated against on the basis of gender.  The law reversed a 2007 SCOTUS decision.   Click here to hear me talk about the Lilly Ledbetter fair pay act, or see my comments about job and wage discrimination here as well.