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WASHINGTON – In the wake of two U.S. Supreme Court rulings limiting the ability to bring successful discrimination claims under the Age Discrimination in Employment Act, the Equal Employment Opportunity Commission is considering a number of actions, including issuing new regulations aimed at clarifying the rules protecting aging workers.

The move comes after EEOC attorneys, advocates, employment lawyers and experts testified before the Commission about the effect the two decisions have had on employees and bias claims.

In a June ruling that surprised many employment attorneys, the Court held in Gross v. FBL Financial Services that plaintiffs cannot bring mixed-motive disparate treatment claims under the ADEA.

Instead, plaintiffs must prove that age is the “but for” cause of an adverse employment decision in order to get relief.

The holding went beyond the question presented in the case, which assumed mixed-motive cases were allowed and asked what kind of proof a plaintiff must present to prevail. [More on the impact of that ruling here.]

Last term, the Court ruled in Kentucky Retirement Systems v. EEOC that an employer that uses age as one of many factors in determining disability and pension benefits is not liable under the ADEA unless a plaintiff can show age “actually motivated” disparate treatment. [More on that decision here.]

Action urged

The recent rulings, coupled with a 30 percent rise in age discrimination charges between 2007 and 2008, have spurred some employment attorneys and worker advocates to push for regulations clarifying the burdens ADEA plaintiffs and defendants face.

Otherwise, they say, older workers may face even more adverse actions by employers who believe they are following the law as long as they have a plausible non-age related reason to target an older worker.

“Before the Supreme Court’s decision in Gross, age discrimination cases were no more difficult to prove than cases brought under Title VII or the Americans with Disabilities Act,” said Cathy Ventrell-Monsees, president of the worker advocacy group Workplace Fairness, who testified before the EEOC. “After Gross, it’s a new ball game and not a level playing field for older workers.”

She said that if the EEOC adopts regulations clearly stating the prohibitions of the ADEA, it would help give the law more teeth.

“Since the EEOC has substantive rulemaking authority … courts should give deference to [its] regulations.”

Employers should be reminded that they still must show that age was not a motivating factor in most age bias claims, said Ventrell-Monsees.

“It is critical that the EEOC issue regulations that fully define the components of the ‘reasonable factor other than age’ defense” in the law, she said.

The regulations should “elaborate on the burden on the employer to plead and prove the defense.”

Age claim challenges

At the July 15 hearing, EEOC attorneys recounted the difficulties they have had bringing claims under the ADEA in contrast to other statutes, such as Title VII or the ADA.

Anna Y. Park, an attorney in the EEOC’s Los Angeles District Office, told commissioners: “One of our more challenging responsibilities is litigating under the ADEA.”

Nancy Dean Edmonds, senior trial attorney in the EEOC’s Indianapolis District Office, where the Kentucky Retirement Systems case was initially brought, said the High Court’s ruling allows employers to make age-based benefit decisions in a way previously prohibited by EEOC rules.

The Court held that although the employer treated employees who continued working after reaching retirement age differently than younger employees, the policy should not have been struck down.

Instead, the Court determined that the disparate treatment that occurred in this case was motivated by pension status rather than age, and therefore did not violate the ADEA.

“The Supreme Court’s decision rejected Commission Guidance which stated that benefits are not equal where a plan reduces or eliminates benefits based on a criterion that is explicitly defined, in whole or in part, by age,” Edmonds said.

She said the effect of the ruling is far reaching.

“[The] decision creates new hurdles for ADEA enforcement,” Edmonds said. “Several recent court decisions have now expanded the Supreme Court’s holding beyond the disability retirement context.”

Laurie McCann, a senior attorney in the AARP’s Washington office, agrees that the ruling is affecting workers beyond the retirement benefits context.

“This decision opens the door for employers to not only deny benefits to older workers based on their age-based eligibility, … but to justify all kinds of policies that discriminate based on age,” McCann said. “What would prevent an employer from refusing to promote retirement-eligible employees [by saying] the decision not to promote them was not based on age, but pension status?”

Stuart Ishimaru, acting EEOC chairman, told witnesses at the hearing that the Commission was open to considering a number of actions, including regulations.

“Age discrimination is an equal opportunity plague,” he said. “It is not limited to members of a particular class or a particular race. It is not limited to particular industries or particular regions. And it is not limited to a particular gender.”

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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