Employment discrimination cases are difficult to prove because the plaintiff ultimately must show what their boss was thinking at the time they were fired or demoted–it is illegal for an employer to fire a worker because they think the worker is too old or too black or too female, but not because they think the worker is incompetent or poorly dressed. Since workers don’t have ESP, the Supreme Court long ago put certain procedures in place to make sure that laws banning discrimination amount to more than just empty promises.
“Mixed motive” suits are an example of these procedures. To win a mixed motive case, a plaintiff had to prove that discrimination was one of the reasons behind their boss’ decision to fire or demote them. It was then up to their boss to prove that they would have made the same decision regardless of the worker’s race or gender or age. Workers are spared the nearly impossible task of having to prove that that their boss was thinking only of bigotry when they lashed out at their employee; and employers are given a fair chance to prove that discrimination is not the real reason why the worker was cast aside.
With the Gross decision, older workers suddenly have been forced to become mind readers. At a time when older workers face an uphill battle trying to keep or find jobs, this decision has made life even more difficult for them, while making it easier for employers to discriminate.
This week a bill was filed to attempt to remedy that decision. From Think Progress:
A bill introduced Tuesday by Sens. Chuck Grassley (R-IA) and Tom Harkin (D-IA) will overturn Gross and restore to older workers the same ability to fight discrimination that they agreed before a 5-4 Supreme Court took it away from them. Although many Senate Democrats have long supported undoing the justices’ mischief in this way, this is the first time a Republican has signed on to the effort — Grassley’s endorsement of the bill is a hopeful sign that it could become law.
Overturning the Gross decision would make it easier for older workers to fight discrimination in the work place. It's certainly a hopeful sign that this is a bi-partisan effort, which certainly makes it more likely that the bill could actually pass. This is worth keeping an eye on.
cross-posted at MainSt/workingamerica.org