A recent editorial column in the New York Times takes to task an age-discrimination ruling by the Supreme Court that it warned might have serious repercussions for older workers.
From the NY Times editorial:
Written by Justice Clarence Thomas and joined by Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Anthony Kennedy, the 5-to-4 decision disregarded legal precedent, longstanding practice and the plain reading of statutory language. It rewrote the rules for litigating age-discrimination cases in favor of employers, which will make it harder for those with legitimate claims of age discrimination to prevail in court.
Essentially, the ruling has shifted the burden of proof in so-called mixed-motive cases. Previously, if a worker could show that age was one of the factors in a layoff, demotion or other adverse employment decision, the employer was then required to show that it had acted for a legitimate reason other than age bias. Going forward, workers will bear the full burden of proving that age was the deciding factor — an ultrahigh hurdle.
In taking this case, the court had agreed to review a comparatively narrow question: the type of proof required to trigger the shifting of the burden to the defendant in a mixed-motive age-discrimination case. But the justices went much further, ruling to end the burden-shifting approach entirely. And they did it without inviting re-argument or supplemental briefing from the parties to the case it was considering.
A LA Times news article says the Supreme Court has significantly shifted the burden of proof onto the employee. In that article, the LA Times talked to several labor attorneys and defines what “mixed motive” is in discrimination law:
In discrimination lawsuits involving what lawyers call “mixed motive” cases, a worker previously might have had a valid claim of discrimination if age or another prohibited factor, such as race, was one of the motivations behind a firing or demotion.
Thomas acknowledged that Congress and the Supreme Court had authorized this approach, but he said it could not be applied to age discrimination cases.
“The burden of persuasion does not shift to the employer,” he said, “even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”
In 1991, Congress amended the law covering discrimination on the basis of race, sex, religion and national origin to allow mixed-motive claims. It did not revise the age bias law. Thursday’s majority said that age, therefore, should be treated differently.
[Image by dbkingvia Flickr CC 2.0]
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