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Court makes age bias cases harder to win

FRIDAY, JUNE 19, 2009

WASHINGTON – At a time when claims of job discrimination on the basis of age are climbing, the Supreme Court reversed a long-standing rule Thursday and made it substantially harder for older workers to win such cases in court.

Previously, judges across the nation had held that if a worker could show age was one of the motivating factors in a layoff or demotion, then the employer was required to prove it had a legitimate reason for its action separate from age.

In a 5-4 decision, however, the court’s conservative majority threw out this two-step approach to age discrimination cases on Thursday, saying workers must bear the full burden of proving age was the deciding factor in their dismissal or demotion.

Since workers claiming such discrimination would be unlikely to have been present when their employers discussed the planned action against them, analysts said, it would be extremely difficult to obtain hard evidence that age was the critical factor.

“This is a significant and marked change,” said Diana Hoover, a corporate defense lawyer in Houston. “It imposes a difficult burden on the employee. You are not going to have an employer stand up and announce, ‘I’m discriminating against you because of your age.’ ” The ruling was sharply criticized by the National Senior Citizens Law Center, AARP and several civil rights groups. They urged Congress to reverse the court’s ruling.

Justice Clarence Thomas, speaking for the majority, said the old procedure could still be applied in bias cases involving possible discrimination on the basis of race, sex, religion or national origin.

But Thomas announced a stricter rule for age bias claims. An older worker who sues must prove “that age was the reason” behind the employer’s action, he said.

In discrimination law suits involving what lawyers have dubbed “mixed motive” cases, a worker previously might have had a valid claim of discrimination if age or another prohibited factor such as race was one of the factors behind a firing or demotion.

Along with Thomas, Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito Jr. made up the majority. Thomas acknowledged that Congress and the Supreme Court had authorized this approach, but Thomas said it could not be applied to allegations of age discrimination.

“The burden of persuasion does not shift to the employer,” he said, “even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”

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