Labor & Employment Law

Bill seeks to change 'but for' test in age bias cases as laid-off older workers plot strategies


For the last several years, legislation has been introduced in Congress which would reverse a 2009 U.S. Supreme Court decision that has discouraged lawyers from bringing age bias suits.

The latest bill was introduced in the Senate with bipartisan support, but a legislative specialist for AARP says it won’t become law without additional support from Republicans, the New York Times reports. According to a press release from one of the sponsors, U.S. Sen. Tom Harkin, D-Iowa, the bill would effectively overrule the Supreme Court decision in Gross v. FBL Financial Services.

Gross held that held age-bias plaintiffs must prove that discrimination was the deciding factor in an employment decision. Plaintiffs alleging discrimination based on race, sex, national origin, and religion, on the other hand, need only prove that discrimination was a motivating factor.

The Times visited a job club meeting in Ridgewood, N.J., where Baby Boomers laid off in the recession debated job strategies. One person recommended lowering expectations; others talked about the importance of LinkedIn. One declared that 500 contacts is the minimum; another said he had amassed 4,200 contacts. Many recommended handing out business cards and sending thank-you emails. Paralegal Karen Clements said she had four resumés to emphasize different skills.

The group members practiced what they preached. The Times reporter received eight business cards and several emails thanking him for attending.

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