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Wayne Parsons
Wayne Parsons
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High Court ruling makes proving age discrimination more difficult for employees.

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The AP (6/19) reports that in a 5-4 decision announced Thursday, the Supreme Court "has made it harder to prove discrimination on the basis of age, ruling against an employee in his mid-50s who says he was demoted because of his age." The decision, written by Justice Clarence Thomas, said "a worker has to prove that age was the key factor in an employment decision, even if there is some evidence that age played a role. In some other discrimination lawsuits, the burden of proof shifts to the employer once a worker shows there is some reason to believe a decision was made for improper reasons." Thomas wrote: "We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in the decision."

The Wall Street Journal (6/19, Anderson) reports that the vote "fell along ideological lines with conservatives in the majority and the court’s liberal block registering an angry dissent," and calls the ruling "a win for businesses that increasingly face age-discrimination lawsuits. But the ruling also drew an angry reaction from a top Senate Democrat on legal issues, who compared the ruling’s outcome to an earlier worker-discrimination ruling Congress overturned with new law." In his dissenting opinion, Justice John Paul Stevens "accused the majority of engaging ‘in an unabashed display of judicial lawmaking’ that he said overturns earlier employment-discrimination precedent and disregards 1991 changes in federal civil-rights laws." Chief Justice Roberts and Justices Scalia, Kennedy and Alito joined Thomas’ opinion, while Justices Breyer, Ginsburg and Souter joined Stevens’ dissent.

The Los Angeles Times (6/19, Savage) reports, "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 Washington Times (6/19, Lobianco) reports, "Democratic lawmakers seized on Justice Stevens’ dissent as constitutional lawyers predicted Congress would make a law to lower the courts new bar for age discrimination cases." Senate Judiciary Committee Chairman Patrick Leahy (D-VT), said: "This overreaching by a narrow majority of the court will have a detrimental effect on all Americans and their families. In these difficult economic times, American workers need to be protected from discrimination."

The National Law Journal (6/19, Coyle) reports, "The practical effect of Thursday’s decision, said lawyers for employees and employers, is to eliminate so-called mixed-motives cases under the ADEA — cases in which age was one of several factors motivating the employer’s action. The decision ‘reads mixed-motives cases out of the age act,’ said Lawrence Lorber, a partner in the Washington office of Proskauer Rose. ‘It’s a good decision for employers unless Congress opts to deal with it.’"