Senate and House bills introduced on Tuesday, October 6, would reverse a June court decision that made it more difficult for employees to sue for age discrimination.

The court held in Gross v. FBL that the plaintiff, Jack Gross, had to prove that age was the only reason that he was demoted from his job as a vice president at FBL Financial Group Inc. in Iowa when the insurance company Farm Bureau merged its Iowa and Kansas operations in 2002.

In a 5-4 decision, the court said that age couldn’t simply be a “motivating factor” in an employment decision; it had to be the decisive cause in order for age discrimination protections to take effect.

But Sen. Tom Harkin, D-Iowa and chairman of the Senate Health Education Labor and Pensions Committee, said that the Supreme Court was in effect “rewriting” the Age Discrimination in Employment Act.

The court “invented a new standard that makes it prohibitively difficult for a victim to prove age discrimination,” Harkin said at a Capitol Hill news conference. “This extraordinarily high burden radically undermines older workers’ ability to hold employers accountable.”

A bill written by Harkin and Sen. Patrick Leahy, D-Vermont and chairman of the Senate Judiciary Committee, clarifies that when a victim shows age to be among the reasons for an adverse job decision, an employer must prove that it would have taken the action regardless of the employee’s age.

Titled the Protecting Older Workers Against Discrimination Act, the bill has a House companion introduced by Rep. George Miller, D-California and chairman of the House Education and Labor Committee.

It’s too early to tell how the measure might affect employers, according to Leslie Silverman, a partner at Proskauer Rose in Washington and a former member of the Equal Employment Opportunity Commission. Much will depend on the legislative details.

“Is it a narrow bill that puts the law back to where most folks thought it was before the ruling or does it have broader ramifications?” she said. “The Gross decision didn’t change the way employers do business, but it did make it much harder to prove age discrimination.”

The legislation represents a second move by Congress this year to overturn a Supreme Court decision. In January, it passed a measure that would renew the statute of limitations each time an employee receives a paycheck that is diminished by a discriminatory act.

The legislation, called the Lilly Ledbetter Fair Pay Act, upended a court ruling that narrowly interpreted the time frame for filing pay suits. It was the first bill that President Barack Obama signed into law.

The Ledbetter bill was killed in a Senate filibuster in April 2008. It also met resistance from then-President George W. Bush, who vowed to veto it.

But now Democrats have 60 members in their caucus—enough to squelch a filibuster—and a Democratic president in the White House.

“We’re going to get it done this Congress,” Harkin said. The congressional session runs until December 2010. “We won’t be facing a veto threat from this president, and that will make it much easier to move.”

Another factor that could give the bill momentum is strong support from AARP, the huge advocacy organization for older Americans.

“Unless Congress passes this bill, too many older workers who have been victims of arbitrary age discrimination will be denied their day in court,” Nancy LeaMond, AARP executive vice president of social impact, said at the Capitol Hill news conference.

Supporters of the legislation said that workers over 55 have been hit especially hard by the recession. More than 2 million in that age group are jobless. About 25,000 age discrimination cases were filed in fiscal year 2008, a 30 percent increase from 2007, according to the EEOC.

“Older workers are disproportionately being laid off in this economy,” Miller said. “They’re the first to go. They’re the last to be rehired.”

Gross, who consistently earned strong performance reviews, said that workplace fairness can gain support across the aisle.

“This issue transcends politics and presents an opportunity for both parties to come together and protect their aging constituents back home,” he said.

—Mark Schoeff Jr.

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