Age Discrimination

EMPLOYMENT ALERT

OUT WITH THE OLD! . . . FOR NOW. . .

By Karen A. Khan, Esq.

As companies downsize, age discrimination claims are on the rise. The EEOC saw a nearly 30 percent increase in age discrimination claims in fiscal year 2008. We are all getting older. And if it's not difficult enough dealing with our aging population, we also have the most recent Supreme Court decision by Justice Clarence Thomas to contend with. Older workers have been dealt a blow that only Congress can remedy, because age discrimination with 'mixed motives' is still discrimination.

So, what is a 'mixed motive' in the context of workplace discrimination claims? It means that the employer used a prohibited reason, in this case an employee's age, as a motivating factor for its adverse action, even though other legitimate factors also motivated the employer's action. And if the employee proved that his or her age was one of the reasons for the adverse action, then the employee would win. This method of proving 'mixed motive' discrimination claims was codified in the Civil Rights Act of 1991, which amended Title VII of the Civil Rights Act of 1964 (Title VII), but not the Age Discrimination in Employment Act of 1967 (ADEA), which outlaws workplace discrimination against employees age 40 and over. Yet, every federal appellate court confronted with 'mixed motive' age discrimination claims analyzed them in the manner I described above, even though the ADEA was not amended by Congress. I suppose this is because the ADEA was patterned after Title VII, and age-bias claims were historically analyzed in the same manner as Title VII claims.

Not any more. On June 19, 2009, Justice Thomas, writing for a 5-4 majority of the Supreme Court in Gross v. FBL Financial Services, Inc., held that age discrimination claims must now be analyzed under a stricter standard. Older workers must now prove that their age was THE reason for the adverse employment action. But how many older workers can prove that, especially when they are usually not present when the employer makes its decision concerning their employment status? How many older workers can prove that an adverse employment action was taken against them "because of" their age?

You might wonder what method the Court used to define the phrase "because of." Well, it intentionally ignored the views of every federal appellate court to have considered the issue, and instead chose to use three dictionaries to justify defining "because of" as meaning 'but for causation.' An employee must now prove that his or her age was the "but for" cause of the employer's adverse employment decision. For example, if an employee covered by the ADEA is denied a promotion in favor of a younger employee, and the employer states that it promoted the younger employee because they are younger and had more relevant experience and qualifications for the position, the older employee would still have to prove that his or her age was THE reason for the denial of promotion, despite the fact that age was one of the illegal reasons given.

If that's not offensive enough, consider the fact that the issue before the Court was never even whether a 'mixed motive' analysis should apply to cases brought under the ADEA. It's as if the Court's majority was looking for a reason to pronounce 'out with the old'! This, despite the fact that projections show that individuals over 65 are expected to comprise nearly 18% of the population in the next 15 to 16 years, which in turn suggests that the working population is increasingly getting older.

There is hope. Even though an older worker's federal ADEA claim may now be nearly impossible to prove, most states, including Maryland, Virginia and the District, have separate laws which make age discrimination unlawful, and the methods of proof under those laws may be less stringent. Employers may be able to defeat an employee's ADEA claim under this new ruling, but only for now, and should seriously question how long it will take Congress to reverse the Gross decision. It may happen sooner than we think, because aging affects us all regardless of our race, color, sex, national origin or religion.

The contents of this Employment Alert are intended for informational purposes only and must not be considered as legal advice.

Karen A. Khan is a local attorney and litigator representing employers and employees in all areas of employment law who has represented both large corporations and individual employees alike in employment discrimination matters, and who has conducted litigation nationwide.

The Khan Law Group, PLLC is a Washington, D.C. based employment law firm representing corporate clients as well as individual employees with employment issues in Washington DC, Maryland, Virginia, and nationwide. The Group is dedicated to providing the highest calibre of personalized legal services and representation.

Contact The Khan Law Group, PLLC at 202-290-1670, for a confidential consultation.