Age Discrimination Claims May Become Easier to Prove

As a LinkedIn user, I have often seen job seekers lament the fact that prospective employers appear to be engaging in age discrimination in the hiring process. I once interviewed for a job in a law firm, and the attorney conducting the interview opened the discussion by looking at my resume with a pained look on her face, and actually said “You don’t have the years you graduated on your resume” – as if these were relevant considerations. Suffice it to say I was not interested in even setting foot in that firm again, and certainly wouldn’t refer anyone to it.  
​
With job postings seeking “recent graduates,” and interviewers commenting applicants are “over qualified for the job,” it’s no wonder why some applicants remove their respective graduation dates and past experience beyond fifteen years to avoid the age calculations, and seriously question whether age and experience are road blocks to employment and job security.

Age discrimination isn’t always easy to prove, especially in light of the U.S. Supreme Court decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). In this case, the Court ruled a complainant over the age of 40 under the Age Discrimination in Employment Act of 1967 (ADEA) must prove age was the "but-for" cause for the employer's decision due to the language of the statute.

To lighten this evidentiary burden, the U.S. House of Representatives introduced bi-partisan sponsored legislation to amend the ADEA. H.R. 1230 would establish age as a motivating factor for any unlawful employment practice, even though other factors also motivated the practice, thereby allowing the "mixed motive" claims denied in Gross v. FBL Financial Services, Inc. The bill was introduced in February 2019 and amended in January 2020.

The legislation would permit a complaining party to rely on any time or form of admissible evidence for a reasonable trier of fact to find that an unlawful practice occurred. It would also authorize a court to grant declaratory and injunctive relief, attorney’s fees and costs; however, despite these authorizations, it would prohibit a court from awarding damages or issuing an order requiring any admission, reinstatement, hiring, promotion, or payment. This sounds a bit circular, so it remains to be seen what this will mean.

The bill applies the same standard of proof to other employment discrimination and retaliation claims, including claims under the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973.

The U.S. Equal Employment Opportunity Commission maintains statistics regarding the number of age discrimination claims received under Federal law, which has been between over 14,000 to over 24,000 claims in one year. While age discrimination claims may remain difficult to advance if this legislation is enacted, it will likely increase awareness and the number of allegations. Preparing for this new legislation will require a review of your institution’s job postings, social media posts, interview questions, performance evaluation protocols, and overall management and conduct in the workplace. 

Veronica Madsen

PLEASE NOTE: The information and opinions provided on this blog are not intended to be legal advice. No attorney-client relationship is formed, nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney that is licensed in your jurisdiction. No article may be republished without the express written permission of ESTEE Compliance, LLC. © 2020