Senator Tom Harkin of Iowa and Representative George Miller of California, the Democratic chairmen of two powerful committees, recently introduced bills to reverse the court’s age ruling. They would make the standard for proving age discrimination equivalent to the standard for proving discrimination on the basis of race, sex, religion and national origin.
Race discrimination is judged under the "strict scrutiny" standard. No other type of discrimination was judged under that standard...until that Ledbetter case, and this age discrimination case. The Supreme Court's intent is obviously to have all discrimination cases dealt with as strict scrutiny cases.
Sen. Harkin and Rep. Miller may not know it, but the Supreme Court intends to do exactly as they ask, proving equality under the law can leave us all equally screwed
The Supreme Court issued a poorly reasoned ruling in June that makes it much harder for older workers to prove illegal age discrimination. Fortunately, bills have been introduced in the Senate and House to undo the damage and put age discrimination cases on an equal footing with other employment-discrimination claims.
When employers discriminate, they generally do not admit it, so Congress and the courts have established calibrated rules of proof to give victims a fair chance. Generally, if workers can show that an illegal consideration, like race or national origin, was a factor in their being fired or demoted, the employer then has the burden of showing that it acted for nondiscriminatory reasons.
That should be the rule under the Age Discrimination in Employment Act of 1967, but the Supreme Court, by a 5-to-4 vote, decided that it is not. Older workers, Justice Clarence Thomas declared for the majority, have the full burden of proving that they were fired because of their age. That is an unfairly difficult standard, and it is an unreasonable interpretation of the law.
As soon as the decision came down, there were calls for Congress to reverse it, much as the Lilly Ledbetter Fair Pay Act of 2009 reversed another poorly reasoned antiworker ruling by the court. In that case, relief was denied to an underpaid woman.
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