Proposed Act Would Reverse Supreme Court Decision in Gross v. FBL Fin. Servs Inc.

In Reid v. Google, Brian Reid, 52, filed age discrimination charges against his former employer when they phased him out of his position with the company. Reid claimed he was terminated because he wasn't a good "cultural fit" with the Internet giant. Google claimed that the allegedly discriminatory comments and behavior Reid cited came from nondecisionmakers and were therefore "stray remarks." Under the Stray Remarks Doctrine, adopted by Supreme Court Justice Sandra Day O'Connor in 1989, employers are not responsible for inappropriate offhand remarks made by nondecisionmakers. In August, however, the California Supreme Court ruled in Reid's favor, asserting that the totality of the circumstances indicated a larger atmosphere of discrimination within the company.

The California Supreme Court's decision is a victory not just for Reid, but for older workers in general. In 2009, the Supreme Court said in a 5-4 ruling in Gross v. FBL Fin. Servs Inc. that employees claiming age discrimination must show that age was the decisive factor in the biased behavior, not just a motivating factor. Though the Gross decision will make proving age discrimination more difficult, experts say older workers have always had a harder time winning discrimination cases than other protected groups.

"Although there's an Age Discrimination in Employment Act (ADEA), the actual views of the courts have been far less generous to older workers who are facing discrimination than they have been to workers facing discrimination on the basis of their race or gender or religion," says Richard Levine, a partner at Levine & Baker. "You just don't get the benefit of the same sort of analysis and this may change."

Senator Tom Harkin of Iowa and Representative George Miller of California, both democrats, are working to pass legislation that would reverse the high court's Gross decision. The legislation, called the Protecting Older Workers Against Discrimination Act, would establish the burden of proof in ADEA claims as no different the theory of mixed motive from Title VII and would require employers to prove that, if age was a contributing factor to the adverse employment decision in question, the same decision would have been made had age not been a factor.

While some groups, such as AARP, have spoken out in support of the bill, others criticize the law as too broad. Particularly, the statement that "the standard for proving unlawful disparate treatment under the [ADEA] and other anti-discrimination and anti-retaliation laws is no different than the standard for making such proof under [T]itle VII," which would cover all claims of discrimination and retaliation and affect much more than the ADEA.

Kayleigh Roberts

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