Will high court make age-bias lawsuits easier or harder to win?

A case the justices heard Tuesday offers them an opportunity to decide the standard for proving illegal discrimination.

By , Staff writer of The Christian Science Monitor

The US Supreme Court is considering whether to clarify how older workers can sue employers accused of using age as a criterion to decide who to demote or fire.

The issue is timely.

Age discrimination is currently a white-hot topic with the US economy in a free fall of demotions and layoffs. Even in the best of times, age-discrimination cases are difficult to prove in court, but a current case at the Supreme Court offers the justices an opportunity to identify the standards necessary to prove a case of illegal age bias to a jury and survive appellate review.

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On Tuesday, the high court took up the case of Jack Gross, a longtime employee of FBL Financial Services Inc., an insurance company in Des Moines, Iowa. As part of a company reorganization, Mr. Gross, in his mid 50s, was demoted and replaced by a less qualified worker in her early 40s. He sued, claiming his reassignment to a less desirable and lower-paying job was a result of illegal age-based discrimination.

At trial, his lawyer challenged the boss's assertion that the new job was a "better fit" for Gross. The jury heard evidence that in one part of the company everyone over 50 got bought out in the reorganization.

The jury sided with Gross, awarding him almost $47,000 in lost compensation. Then, a federal appeals court panel reversed and remanded the case for a new trial. The appeals court said the trial judge gave improper instructions to the jury.

At issue before the Supreme Court is whether the trial judge used the correct standard of proof and procedure for a lawsuit filed under the Age Discrimination in Employment Act.

The federal judge at Gross's trial allowed the case to go forward with Gross presenting circumstantial evidence of discrimination.

Once Gross presented his circumstantial evidence, it was then up to FBL to prove that it relied on other nondiscriminatory factors when demoting him.

The Eighth US Circuit Court of Appeals ruled that the trial judge did not set the proper evidentiary standard for Gross in the initial stage of the trial. The appeals court ruled that Gross had to present "direct" evidence of discrimination that would be "clear and convincing" to a jury.

Unless he presented such evidence, the burden of proof would not shift to FBL to prove that its actions were motivated by legal reasons for the demotion. Instead, the burden would remain with Gross's side to prove he was a victim of discrimination.

Very few employment discrimination cases involve pure acts of discrimination. Usually they involve several factors, including some that may be legitimate but used as a pretext to support the firing or demotion, say experts in employment law.

In cases involving so-called mixed motives, the courts have created a mechanism in which once a plaintiff makes a showing that illegal discrimination played a role in the dispute, the burden shifts from the plaintiff to the employer to prove that nondiscriminatory factors caused the employment action. If the employer can make such a showing, the employee loses his case.

During oral argument on Tuesday, the justices offered few clues about the substance of a potential decision. But some justices seemed to be considering replacing the burden-shifting approach in such cases for a more straightforward approach, in which the employee would carry the burden of proving his or her case and the employer would simply defend the action.

At one point, Justice Samuel Alito asked if any empirical studies had been undertaken to show "whether any of this really makes a difference."

Assistant Solicitor General Lisa Blatt said she was not aware of any studies. She said lawyers at the federal Equal Employment Opportunity Commission sometimes prefer the so-called burden-shifting approach and sometimes prefer the more straightforward approach.

The answer prompted Justice David Souter to ask whether juries view such cases differently based on such approaches. "If you say to the jury, 'do the right thing,' they'd probably come out the same way it would come out if you gave the burden-shifting instruction," he said.

He added, "What difference does it make?"

Ms. Blatt responded that it would make a big difference. "You are going to create massive confusion, not only under the age act, but under the Americans with Disabilities Act, the Family Medical Leave Act, a variety of labor statutes, disciplinary statutes...."

Justice Souter interjected: "Juries are smarter than judges."

FBL's lawyer, Carter Phillips, urged the justices to act boldly and to move away from the burden-shifting approach. "I would hope that the court would seize upon this as an opportunity to provide some significant clarity in the law, rather than seize this as an opportunity to decide this case on the potentially most narrow ground," Mr. Phillips said.

He said a narrow approach to the issues in the case would ultimately not resolve Mr. Gross's case. He added that it "certainly will not do anything to resolve the mass confusion that seems to exist among the lower courts."

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