Grassley Op-ed: Ten years after harmful ruling, older Americans still face workplace discrimination
By Sen. Chuck Grassley of Iowa
This week is the 10-year anniversary of the Supreme Court ruling that has made it easier for businesses to discriminate against individuals based on age.
In 2004, Jack Gross of Des Moines sued FBL Financial Group, where he had been working as a vice president, citing age discrimination. The previous year, the company had announced staffing changes, which resulted in many of Gross’ responsibilities being given to a much younger coworker. He had found success in lower courts, but when his case reached the Supreme Court in 2009, justices ruled 5-4 against him, setting a new precedent in age discrimination cases.
Prior to the ruling, a worker only had to establish that age played a significant role in discriminatory employment action. That changed when the court held that plaintiffs alleging age discrimination must prove that age was the deciding factor. The crucial change put a higher burden of proof on victims – higher than any other type of discrimination case, including those alleging discrimination based on race, sex or religion.
Since the ruling, Gross v. FBL Financial Group is regularly cited in cases of age discrimination and it’s had a major impact on employment litigation. The ruling made it more difficult for workers facing age discrimination and retaliation to enforce their rights. According to a study conducted by the AARP, nearly 2 out of 3 workers aged 45 years and older reported seeing or experiencing age discrimination in the workplace. That shouldn’t be the case.
In 1967, Congress passed the Age Discrimination in Employment Act (ADEA). Its purpose was to protect workers and job applicants aged 40 and older from employment discrimination based on age. It also offered retaliation protections to workers who raised concerns about employment practices that discriminated against older Americans. Gross v. FBL Financial Group reversed the progress made in that legislation, and sent the message to employers that age discrimination is acceptable.
Jack Gross and the millions of older Americans in our workforce throughout the nation deserve the protections Congress originally intended in the ADEA. That’s why I’ve been working to enact legislation that would restore the ADEA and provide equal treatment and protection under the law to older Americans.
In 2012, former Iowa Sen. Tom Harkin and I first introduced bipartisan legislation that would reverse the Court’s 2009 decision and restore the ability of older workers to take legal action when age discrimination affected their professional opportunities, and I’ve supported the Protecting Older Workers Against Discrimination Act (POWADA) in each subsequent session of Congress.
In the 116th Congress, I joined Democratic Sen. Bob Casey from Pennsylvania in introducing this bill once again. The POWADA would restore critical protections for older workers originally established in the ADEA and make it easier for employees to prove when they fall victim to age discrimination in the workplace. Importantly, it would overturn Gross V. FBL Financial Systems and make it clear that a worker only needs to prove that age was a significant factor in the disciplinary action, firing or other employment decision to contest that decision in court. It would apply the same standard of proof to other employment and retaliation claims, such as claims involving discrimination based on race or disabilities.
Over the years, I’ve spoken to Gross several times to hear about his experiences and discuss the mounting challenges facing older employees. He is one of more than roughly half a million older Americans living in Iowa and the discrimination he faced represents a nationwide problem that shows no sign of improving on its own. In our recent meeting earlier this year, Gross remarked that his son was nearing the age that he was when he experienced age discrimination. Age discrimination is not only a problem facing older Americans now, but will continue to impact future generations as long as Congress fails to act.
Jack Gross and millions of older Americans throughout the country bring tremendous value to our economy and our society. Their depth of experience ought to be respected, not discounted. America’s older employees deserve the same rights and protections afforded to younger generations, and I will continue working with my congressional colleagues to make that happen.