In response to the effect of widespread layoffs, threats to employee benefits, and a number of recent controversial Supreme Court decisions, the Equal Employment Opportunity Commission (EEOC) is considering adopting regulations to protect older workers from job discrimination. 

The EEOC held hearings on July 15th on recent developments under the Age Discrimination in Employment Act (ADEA), in which legal experts testified that recent Supreme Court rulings such as Gross v. FBL Financial Services, Inc. have “decimated” the effect of the ADEA in protecting older workers. 

In Gross, the Supreme Court held that employees bringing claims under the ADEA must prove by a preponderance of the evidence, that age was the deciding factor or the "but-for" cause of the challenged adverse employment action, and not just one of several factors that motivated the employer.  The practical effect of the Gross decision is that employees alleging age discrimination have a higher burden of proof than those alleging discrimination on the basis of race, gender, national origin or religion under Title VII. 

Acting EEOC Chairman Stuart Ishimaru speculated that “conscious or unconscious stereotypes” may cause employers to lay off older workers disproportionately during the economic recession and wondered about the extent of the public’s awareness of the illegality of age discrimination. 

During the hearing, an attorney for the American Association for Retired People (AARP) called on Congress to amend the ADEA to mirror Title VII’s burden-allocation. The experts also proposed a variety of potential enforcement and policy solutions, such as issuing regulations to fully define the components and burdens of pleading and proof of the reasonable factor other than age defense under the ADEA; developing policy guidance to make uniform the relevance and weight of ageist comments; and further use of the EEOC’s rulemaking authority under the ADEA.

Ishimaru and the other commissioners said they would consider drafting regulations to clarify the Supreme Court rulings on how the ADEA should be enforced. 

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.