EEOC weighs action to counter age-bias rulings

[July 16, 2009]  WASHINGTON (AP) -- The Equal Employment Opportunity Commission is considering new rules to protect older workers from job discrimination after a spate of recent Supreme Court decisions made it harder to prove age bias in the workplace.

The action comes as age discrimination complaints to the agency, which enforces federal employment discrimination laws, rose 29 percent last year, more than any other type of bias claim.

Legal experts at a commission hearing on Wednesday complained that recent high court rulings have "decimated" the effect of age discrimination laws.

Last month, the Supreme Court ruled 5-4 that workers bear the burden of proving age was the key factor in a demotion or layoff. That changed a long-standing interpretation of the law, which called for a worker to show that age was just one factor in the employment decision and then shifted the burden to the employer to prove there was a permissible reason for the action.

Cathy Ventrell-Monsees, president of Workplace Fairness, a nonprofit group that promotes employment rights, told the commission that the court's decision in Gross v. FBL Financial Services Inc. forces older workers to meet a higher standard of proof than employees alleging discrimination on the basis of race or sex.

"After Gross, its a whole new ball game and not a level playing field" for older employees, Ventrell-Monsees said.

In another 5-4 ruling last year, the Supreme Court held that Kentucky's retirement system does not discriminate against older workers, even though the system deprives employees older than 55 of certain benefits.

Nancy Dean Edmonds, a senior trial attorney for the EEOC's Indianapolis office, said the ruling "creates new hurdles" for age discrimination enforcement.

Acting EEOC Chairman Stuart Ishimaru speculated that "conscious or unconscious stereotypes" may cause employers to lay off older workers disproportionately during the economic recession.

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

"I wonder whether the public generally realizes that age discrimination is illegal," Ishimaru said.

Laurie McCann, an attorney with the AARP, called on congressional lawmakers to amend the Age Discrimination in Employment Act to make clear that it should be enforced in the same manner as age, sex and other discrimination cases.

That may well happen. Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, hinted last month that lawmakers would take a look at bolstering age discrimination laws. He compared the court's latest ruling to the 2007 Lilly Ledbetter case that made it harder to sue over past pay discrimination. Congress passed legislation reversing that decision earlier this year.

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On the Net:

Equal Employment Opportunity Commission: http://www.eeoc.gov/

[Associated Press; By SAM HANANEL]

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