Supreme Court’s Attack On Age Discrimination Protections Remains Unfixed

June 22, 2021

June 18, 2021, marks the twelfth anniversary of Gross v. FBL Financial Group, Inc., a 2009 decision by a closely divided Supreme Court that eviscerated age discrimination protections in employment and made it easier for employers to fire or demote an employee because of their age. Gross and subsequent cases also show the tangible effects that conservative judicial rulings have on the rights of everyday Americans.

In the years since the Gross decision, Congress has failed to act to bring back these critical protections despite bipartisan support. Last month, the House Committee on Labor and Education approved amendments introduced by Virginia Representative Bobby Scott to overturn this egregious decision and a bipartisan group of Senators, led by Pennsylvania Senator Bob Casey, introduced a similar bill in the Senate. Congress should move swiftly to approve these measures and restore the rights of older Americans.

Jack Gross was a 54-year-old employee of FBL Financial Group, Inc. and had worked at the company for decades. In 2003, FBL underwent a merger and offered buyouts to many older employees. Gross did not take the buyout and was subsequently reassigned from his position and a younger, former subordinate was given many of his job responsibilities. Gross believed that he had been demoted from his position at the company due to his age and filed a lawsuit in federal court. After trial testimony, a jury of his peers agreed that his age played a role and awarded him nearly $50,000 dollars under the Age Discrimination in Employment Act (ADEA).

Jack Gross’s case ultimately ended up before the Supreme Court in 2009 where he lost by a 5-4 vote. Writing for his conservative colleagues of the Court, Justice Clarence Thomas held that, in essence, age cannot simply have been a reason, it must have been the reason why an employee was fired or demoted. Further, the Court held that the burden is on the employee being discriminated against to prove that age discrimination was the reason for the negative treatment.

The Gross ruling singled out age discrimination, making it harder to prove than similar cases of race or sex discrimination in the workplace. The Court’s four liberal justices strongly dissented, noting that there was no reason why age discrimination should have a higher burden than race and sex discrimination, which is governed by a different law, Title VII of the Civil Rights Act of 1964. Treating these laws differently even required the Court to violate its own past rulings to do so.

Further, the dissenters noted that this issue of burden of proof for discrimination was not even being argued in this case; the Supreme Court had granted review on a different legal question. The conservative majority on the Court went out of its way to rewrite the standard for proving age discrimination in employment under the ADEA, even though it had not been argued by Jack Gross or his employer.

There was widespread outcry over the Supreme Court’s decision. Law Professor Michael Foreman wrote that the decision “immediately impacted older workers, relegating them to second-class status among victims of discrimination . . . .” A bipartisan group of Senators introduced legislation to correct the Supreme Court’s decision and clarify that age discrimination should be decided under a less burdensome standard. Lawmakers had just taken similar action by passing the Lilly Ledbetter Fair Pay Act to correct a different Supreme Court decision that had made it harder to sue over discriminatory wages.

Congress never voted on the proposed ADEA amendments, despite the fact that a bipartisan group of lawmakers has introduced the bill every year since. The most recent amendment, the Protecting Older Workers Against Discrimination Act (POWADA), was approved by the House Committee on Education and Labor this May by a vote 29-18, with only one Republican representative voting in favor. However,  Iowa Republican Senator Chuck Grassley wrote an op-ed in 2019 on the tenth anniversary of the Gross decision decrying the Supreme Court for making a ruling that “still harms older Americans” and called on Congress to restore the ADEA’s protections. Indeed, the Gross decision has since gone on to be cited by lower federal courts in rejecting age discrimination cases across the country.

One of those cases was recently decided by the Seventh Circuit Court of Appeals. In 2019, all four of President Trump’s appointees to the Seventh Circuit (covering Illinois, Indiana, and Wisconsin), including future Supreme Court Justice Amy Coney Barrett, cast the deciding votes in a case that further limited protections for older Americans in the workplace.

In that case, Dale Kleber had applied for a senior position in the company CareFusion’s legal department. The job description stated that the company wanted someone with “no more than seven years” of experience. Kleber, who was 58 at the time he applied, had more than seven years of experience, and his application was rejected in favor of a 29-year-old who “met but did not exceed” the experience requirement. Kleber then sued under the Age Discrimination in Employment Act (ADEA), the same law the Supreme Court limited in the 2009 Gross case. He argued that the maximum experience job requirement had a discriminatory impact on older applicants, meaning it disproportionately harmed older applicants.

When the Seventh Circuit first heard his case they agreed, ruling that the job’s maximum of seven years of experience violated the law and discriminated against older applicants. However, in a procedure known as en banc review, all of the Judges on the Seventh Circuit, including President Trump’s four appointees, heard the arguments a second time and Trump appointee Judge Michael Scudder wrote that the maximum experience requirement was legal. The Court held that the ADEA does not protect older employees and applicants from rules that have a discriminatory impact against older Americans. Instead, like in the Gross ruling, an applicant must prove that the company intended to discriminate against older applicants. Further, the court said that the law only offered protections to current employees and not to job applicants at all, even though the law was designed to stop discrimination in hiring.

The cumulative impact of decisions like Gross and now Kleber is that older Americans have far fewer protections from being discriminated against in the workplace based on their age than if they were discriminated against based on their race or sex. It is likewise much harder to sue employers for engaging in such discrimination. Congress should remedy the damage from these harmful decisions and restore the protections of the ADEA to millions of older American workers.