Congressional Democrats are taking a whack at overriding another recent decision by the U.S. Supreme Court, looking this time at a 2009 ruling about age discrimination.
The decision in Gross v. FBL Financial Services Inc. changed the standard of proof for workers who sue under the Age Discrimination in Employment Act of 1967. Under the Court's 5-4 opinion, a worker must prove that the employer would not have taken a certain action, such as a demotion, "but for" the worker's age, even if there's evidence that age was a factor in the decision.
Plaintiffs' lawyers say the decision has made it more difficult to bring age-discrimination claims, and Democrats are taking up their argument, just as they did after the 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. about gender discrimination.
In a hearing today, the House Subcommittee on Health, Employment, Labor, and Pensions heard from Jack Gross, the plaintiff in the case that reached the Supreme Court. He was among a group of employees, almost all over 50 years old, who were demoted.
"I hate having my name being associated with the pain and injustice now being inflicted on other workers," Gross said.
Legislation has been introduced in the House and Senate that would override the Supreme Court's interpretation of the age-discrimination law. Under the legislation, a plaintiff would have to show only that an "impermissible factor" such as age "was a motivating factor" in the employer's action. The hearing today is Congress' first on the Court's ruling.
Eric Dreiband, a partner in the Washington office of Jones Day who does corporate defense work, testified that parts of the proposed law are broad and ambiguous. He also questioned whether workers would really see additional awards.
"The bill may enable some lawyers to earn more money, but who does this benefit?" Dreiband asked.
The AARP is supporting the legislation, and Gail Aldrick, vice chair of the group's board, also testified today. Those registered to lobby on the bill include the National Association of Manufacturers and the U.S. Chamber of Commerce.
Democrats are pushing congressional overrides to several other recent Supreme Court rulings in the areas of medical-device lawsuits, securities-fraud lawsuits, and vertical price-fixing.