Thursday, June 18, 2009

Older employee with loud clothing makes age discrimination history but his case still goes on

The United States Supreme Court issued another 5-4 decision in an employment discrimination case today, Gross v. FBL Financial Services, Inc. (June 18, 2009). In the majority opinion, Justice Clarence Thomas ruled that a plaintiff in an age discrimination case must prove by direct evidence "that age was the 'but for' cause of the challenged adverse employment action." In the two dissenting opinions, one by Justice Stevens and one by Justice Breyer, the minority of justices opined that earlier Supreme Court precedent required the employee aggrieved by an employment decision to present a preponderance of evidence that age was a factor or played some role in the challenged employment decision, for the burden of proof to shift to the employer to show it would have made the same decision even without considering the employee's age. So a demoted older worker who also wore loud clothes gets his federal case considered (but not finally decided) by the Supreme Court, leaving a fractured decision, more litigation, more time and effort by more lawyers, courts, and citizens -- all of whom will continue to wonder whether Gross really was a victim of age discrimination. Since answers to these questions are so complex in the first place, and so difficult to determine at the end of the day, one can only suggest that a better way to resolve the issues surrounding difficult employment decisions would be in a mature, civilized discussion, also known as . . . mediation.

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