By Senator Tom Harkin (D-Iowa). Sen. Harkin is Chairman of the Senate Health, Education, Labor and Pensions Committee.
When Jack Gross, at age 55, was brazenly demoted and his job was given to a much younger, less qualified person, he never imagined he would become a central national figure in the fight against age discrimination. But that is exactly what happened to Jack, who worked for nearly a quarter century as a claims adjuster for FBL Financial in West Des Moines. He was a model employee, with performance reviews in the top three percent of the company for 13 consecutive years.
Over four decades ago, expressly to prevent this kind of discrimination, Congress passed the Age Discrimination in Employment Act. Very simply, that act made it unlawful to discriminate on the basis of age.
When Jack sought enforcement of his rights, a jury of fellow Iowans readily found in his favor. But, in 2009, the Supreme Court ruled against Jack and other older workers. A narrow majority on the Court didn't just rewrite the rules, it arbitrarily rewrote the law.
The Court overturned established precedent that had applied standards of proof the Supreme Court first set out in interpreting the Civil Rights Act of 1964 to the Age Discrimination in Employment Act (ADEA). The Court held that because Congress did not amend the ADEA to include this standard when it codified the standard for race, sex, national origin, and religion claims as part of the Civil Rights Act of 1991, the standard did not apply to age claims. As a result of this discrepancy, the opinion has also had reverberations in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.
The good news is that the Court's arbitrary ruling is not the final say. Congress has the power to step in with a legislative remedy. That is what it did when the Court weakened the rights of women in the workplace. Congress passed and the President signed into law the Lilly Ledbetter Fair Pay Act.