Wiser Worker Blog

The Supreme Court has shifted the burden of proof over to companies who are under claims of age discrimination especially in the event of lay offs or downsizing.

By a 7-1 vote, the court ruled that when a company asserts layoffs of older workers were based on factors other than the workers’ age, the company has the burden of proving those factors are valid.

The U.S. Equal Employment Opportunity Commission (EEOC), which handles age complaints, reports that age claims have increased steadily over the past decade. About 19,000 are filed annually.

Lawyers who represent employees cheered the decision, as business groups termed it a disappointment. “

… Employers can defend themselves by showing that the lopsided impact was based on “reasonable factors” other than age, such as performance criteria or needed skills.

Read: High court aids older workers who claim bias, USA Today

The article in USA Today goes on to explain that trying to provide proof of reasonable factors is difficult for them to do and will probably lead to more costly lawsuits.  On one hand the representative interviewed from the AARP says that if the ruling swung the other way, it’d be nearly impossible for the defendent.  The ruling is said to help to protect the older workers who seem to bear the brunt of age discrimination or an unfair disadvantage in downsizing decisions.

Advocates for older workers, including AARP, hailed the decision. They said it would strengthen the rights of laid-off workers to challenge supposedly “neutral” corporate policies that fall heavily on the older employees.

… The burden “is now squarely on the shoulders of employers,” said Sheryl Willert, a lawyer in Seattle. She cautioned employers who rely on subjective factors for deciding on layoffs: “It is more imperative than ever that employers engage in very clear evaluation and analysis and remove as much subjectivity as possible from business decisions.”

Read: Court protects workers against age bias, Seattle Times

I read this and was thinking that while this is great, what kind of help does that offer to people facing discrimination issues now.  Or for individuals who are in the midst of a job search.  I received an email from someone just this morning asking for more information on resources that were available for someone who was in their 60’s looking for work.  This individual was frustrated with being 2nd runner up for a job, seemingly only because of their age. 

So I did some research and found this article on the AARP website called: What You Can and Can’t Do About Age Bias.  Bob Skladany offers some good advice for dealing with age bias while on the job hunt.  It includes answers about what you can and can’t do about an employer and their decisions about hiring and firing. 

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