- The Washington Times - Friday, June 19, 2009

The Supreme Court on Thursday made it harder for employees to win claims of age discrimination, a ruling with implications for aging baby boomers who hope to hold on to their jobs in the face of lost retirement savings in last year’s stock market crash.

With age-discrimination claims skyrocketing, the court said in a 5-4 decision that a worker must prove age was the dominant factor in his or her firing or demotion in order to be successful. Previously, workers had to prove only that age was a factor in the decision, as is the case for discrimination based on sex or race.

“The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Justice Clarence Thomas wrote for the majority, which included Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Anthony M. Kennedy and Antonin Scalia.

It upheld a lower court ruling that said a 54-year-old vice president of an Iowa financial company didn’t prove he was demoted in a reorganization because of his age.

“This is going to make it a lot harder for a lot of legitimate claimants who have real discrimination problems,” said Daniel Kohrman, senior attorney with the AARP.

Justice John Paul Stevens, who wrote for the minority, called it judicial lawmaking, saying the Age Discrimination in Employment Act and Title VII of the Civil Rights Act provided clear guidance of Congress’ intent that age, sex or race need not be the only factors to prove discrimination.

Democratic lawmakers seized on Justice Stevens’ dissent as constitutional lawyers predicted Congress would make a law to lower the courts new bar for age discrimination cases.

“It is even more troubling that these five justices decided to go further than the question presented to the court,” said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat.

“This overreaching by a narrow majority of the court will have a detrimental effect on all Americans and their families. In these difficult economic times, American workers need to be protected from discrimination.”

Mr. Leahy said Thursday’s decision reminded him of the court’s “wrong-headed ruling in Ledbetter,” a reference to Lily Ledbetter, whose pursuit of equal pay to her male counterparts at Goodyear Tire & Rubber Co. was thrown out in 2007 because she filed the lawsuit after the expiry of a 180-day statute of limitations.

Earlier this year, the Democrat-led Congress passed legislation to expand the window for equal-pay lawsuits. It was the first measure Barack Obama signed as president.

“It’s a little bit like a less politically sensitive Ledbetter case,” said professor Mark Graber, a specialist in constitutional law at the University of Maryland Law School. “My prediction is Congress is going to fix it.”

As the national economy stumbles, age discrimination claims filed with the Equal Employment Opportunity Commission have jumped 29 percent, rising from 19,100 in 2007 to more than 24,500 in 2008.

Charges of age discrimination typically spike during an economic downturn, said EEOC spokesman David Grinberg, though it’s unknown specifically why the claims increased.

One reason might be the large number of baby boomers working past traditional ages of retirement, he said.

“It was the baby boomers who are the ones who were the catalysts for these Civil Rights laws,” Mr. Grinberg said. “They are going to be more aware of their rights than other generations.”

In his dissent, Justice Stevens called the ruling “unwise and inconsistent with settled law.”

“Yet today the court resurrects the standard in an unabashed display of judicial lawmaking. I respectfully dissent,” Mr. Stevens wrote. The minority opinion was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.

In the case, Jack Gross sued FBL Financial Services of West Des Moines, Iowa, under the federal Age Discrimination in Employment Act. A jury agreed that his age was a motivating factor in his demotion. He was awarded $46,945 in lost compensation. A federal appeals court in St. Louis then overturned the verdict and he pursued it to the high court.

• Tom LoBianco can be reached at tlobianco@washingtontimes.com.

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