Friday, June 19, 2009

The Smell Of Dry Powder

Life just got a little tougher for the over-40 crowd. Yesterday, the US Supreme Court ruled that in age-bias claims, the plaintiffs will have the full burden of proving that age was a factor in their firing or demotion. From the Los Angeles Times:

With workplace age-discrimination claims rising rapidly, the Supreme Court made it much harder Thursday for older workers to win in court.

The 5-4 decision reversed a long-standing rule. Many federal appellate courts had decided that if a worker could show age was one of the factors in a layoff or demotion, then the employer was required to prove it had a legitimate reason for its action apart from age.

The court's conservative majority, led by Justice Clarence Thomas, threw out this two-step approach. Instead, the court said, workers bear the full burden of proving that age was the deciding factor in their dismissal or demotion.

Because workers claiming such discrimination almost certainly will not be present while their employers discuss laying them off or demoting them, analysts said, it will be extremely difficult to obtain hard evidence that age was the key factor.

The last paragraph is crucial in understanding just why this decision is so devastating to elders in the workplace. No employer is going to come right out and say, "You're too old for this job. We need younger people," and the target employee is not likely to be present at the meetings where the action is being set up. Unless a whistle blower steps forward, there is no practical way that the age bias law as it currently stands will ever have any force.

Justice Thomas' opinion, in which he was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito Jr., found, unfortunately, a pretty sturdy hook upon which to hang the decision:

In 1991, Congress amended the law covering discrimination on the basis of race, sex, religion and national origin to allow mixed-motive claims. It did not revise the age bias law. Thursday's majority said that age, therefore, should be treated differently.

That, of course, should mean that the problem can be fixed by Congress, just as Congress fixed the problem with the Lilly Ledbetter decision by this Court. New legislation can, and should, be drafted which extends the "mixed-motive" approach to the age bias law. Given the outrage expressed by Sen. Patrick Leahy (D-VT) to the decision, at least one senator is obsiously considering such a a move. I certainly hope so.

But hope isn't legislation. Please consider writing your congress critters urging them to undo the travesty of this decision.

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Blogger Cosa Nostradamus said...

It used to be that 50 or 60 was the secret cut-off for hiring. Now it's 40, and it's headed toward 30, according to employment agency & HR people I've tortured. Younger people just work cheaper. There never was any protection for older workers in hiring, just firing. Now that's going too.

According to a recent survey, there isn't going to be any more retirement. It was a generational aberration and now its gone.

Of course, in a democracy, with an aging majority, none of this would be possible. In a corporate State, nothing else is possible. And that's why Purina makes "cat"food, kids.

We need to quit f**king around with the "moderates" and replace them all with actual progressives with some b*lls. This is war and people are dying. An entire generation is about to be thrown into poverty, and it won't be genteel. It'll be even worse for the succeeding generations.

Last chance, Democracy.

6:27 AM  
Anonymous Anonymous said...

Kennedy seems to have been swayed almost totally bo Roberts' charm and "reasoning."

I recall SCOTUS analysts saying that Kennedy was a swing vote as long as he didn't become captured by the right (which seemed his inclination, but from which he could be persuaded to think a tad differently at times). Appears the capture by the right is completed or nearly so.

Roberts is going to try to do as much as possible to move the country to the right and keep it there under law, in direct opposition to the will of the voters and the legislature. The latter two can be moved rightward as well, since there's no clear leader for the left in politics right now.

Obama might well be satisfied with this result; afterall, he initially wanted to vote for him. Gives him cover for his rightward tendencies.


7:32 AM  
Blogger Woody (Tokin Librul/Rogue Scholar/ Helluvafella!) said...

Our ONLY hope is that whatever it was that dropped Chief Roberts on his back, on that dock, a couple of years ago, comes back to finish the job.

Obama's pick for a new Chief, if he were lucky enough to get one, would tell you all you'd ever need to know about his 'true' feelings and beliefs about the future of the country...

Unfortunately, I'm reduced to sticking pins in my Chiff Roberts voodoo doll...

7:41 AM  

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