Access To Justice

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.