Double Standard for Older Workers

It is much more difficult for older workers to prevail in federal discrimination lawsuits than for victims of race, sex, national origin, color and religion.

But why?

As Shakespeare said: “If you prick us, do we not bleed?”

The Age Discrimination in Employment Act (ADEA),  29 U.S.C. §§ 621 et seq., makes it  “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).”  The ADEA covers employees who are age 40 and older.

To prevail on an ADEA claim, however, the U.S. Supreme Court says a plaintiff must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).

In other words, the ADEA plaintiff must show that but for age discrimination, the employer would not have made the adverse job decision (i.e. demotion or dismissal)..

This is a far higher standard than required in Title VII of the Civil Rights Act of 1964, which covers discrimination on the basis of sex, national origin, color and religion.

In Title VII lawsuits, it is sufficient for the plaintiff to show that discrimination was a “motivating factor” in the adverse job action. The Title VII plaintiff is not required to show that age was the determining factor.

Once the Title VII plaintiff shows that the employer’s motivation included unlawful discrimination, the burden of persuasion shifts to the employer to prove that it would have taken the same employment action for a legitimate reason in the absence of discrimination.

The burden does not ever shift from the plaintiff to the employer in an ADEA case.

There has been discussion – but no action – in the U.S. Congress to adopt new legislation to establish the same causation theory for the ADEA that exists with respect to Title VII but so far nothing has happened except that older workers continue to lose lawsuits where they have shown they were victims of gross age discrimination.

By holding ADEA plaintiffs to a much higher standard than other discrimination victims, the U.S. Congress and the U.S. Supreme Court seem to be saying that  age discrimination is somehow less harmful than other types of discrimination. But where is the evidence for that?

Age discrimination is possibly more insidious today than it has been at any other time in history.  When older workers lose their job today, they may never find another job, let alone another job that is comparable to the one they lost. Many hurtle toward their retirement years unprepared, without sufficient funds or even health insurance.

According to a recent study by the Pew Charitable Trust, more than 42 percent of unemployed workers older than 55 had been out of work for at least a year in the fourth quarter of 2011 — the highest percentage of any age category. Only 21 percent of people under 25 are long-term unemployed. That number rises to 29 percent for ages 25-34; 36 percent for ages 35-44; and 39 percent for ages 45-54.

It’s no picnic for many older workers who remain employed either. They may be “stuck” in bad jobs. Employers know that older workers will find it difficult – if not impossible – to prevail in age discrimination lawsuits. And they know that older workers can’t afford to quit and face the risk of chronic unemployment.   This situation does not provide any incentive for employers to treat older workers with respect and dignity.

Not surprisingly, the number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

The real tragedy in all of this is the sense that many older workers —  who have spent a lifetime paying taxes and being good citizens — are denied equal protection by the very democratic institutions that are charged with  insuring equal protection for all.

Minnesota School Bully Lawsuit

June 22, 2011 – In recent years, schoolyard bullying has become a focus of concern in America, and this concern has spilled over to  workplace bullying.

Now Minnesota’s biggest school district is being sued for allegedly enacting policies that discriminate against homosexual students in its Anoka-Hennpin School District. As a result, the lawsuit alleges, lesbian, gay, bisexual and transgender students and those “perceived as LGBT have been subjected to a constant torrent of slurs and have been physically threatened or attacked by peers.”  See complaint here.

The suit objects to the school district’s “Sexual Orientation Curriculum Policy,” which allegedly prohibits staffers from acknowledging the existence of LGBT people and, according to the suit, prevents teachers from effectively intervening when they see bullying taking place.  The policy states: “Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student led discussions.”

The lawsuit states three distinct causes of action:

  •  U.S. Constitution Amendment XIV, Denial of Equal Protection on the Basis of Sexual Orientation

Defendants, acting under color of state law, have deprived plaintiffs of the rights, privileges, or immunities secured by the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, in that Defendants, without justification, have Treated plaintiffs differently than other similarly situated students and student groups on  basis of actual or perceived sexual orientation.

  • Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.Discrimination Based on Sex 

The School District and each school within the District attended are recipients of federal financial assistance. The acts and omissions of Defendants violated Plaintiffs’ rights under Title IX by discriminating on the basis of sex. Defendants had actual notice that harassment based on sex was so severe, pervasive, and objectively offensive that it created a hostile climate based on sex that deprived Plaintiffs of access to educational programs, activities, and opportunities.

[Note: Title IX states that “no person” (which includes workers!) in the  United States “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance … .” ]

The acts and omissions of Defendants violated Plaintiffs’ rights under the Minnesota Human Rights Act by discriminating against their full utilization and benefit of an educational institution on the basis of sexual orientation. Defendants aided, abetted, and incited discrimination against Plaintiffs based on sexual orientation that prevented her full utilization of and benefit from an educational institution.

The suit was brought by the Southern Poverty Law Center, the National Center for Lesbian Rights, and the law firm of Faegre & Benson.