As employment attorneys, the members of Spitz, The Employee’s Law Firm are aware of one fact that many individuals do not realize; namely, that it is easier to prove a race, gender, or discrimination claim that it is to prove an age discrimination claim or an unlawful retaliation claim, under Federal law. Most individuals would think that all illegal discrimination and/or retaliation should be treated the same, and we’d agree that those individuals are correct. The strange state of affairs which led to this imbalance began four years ago.
In 2009, the United States Supreme Court in Gross v. FBL Financial Services, Inc. held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (“ADEA”) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. In order to establish a viable claim under Title VII, by contrast, an employee need only demonstrate that the protected category such as race or sex was a contributing factor in the adverse employment decision. In such a “mixed motive” case, the burden then shifts back to the employer to show that it would have made the same decision regardless of the unlawful contributing factor.
In a more recent Supreme Court decision, University of Texas Southwestern Medical Center v. Nassar, the Court held that Title VII retaliation claims must be proved using a “but-for” causation standard as well. Under the standard of causation adopted in Nassar, a claimant must prove “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”
Luckily, several members of Congress are looking to overturn these recent Supreme Court holdings. Legislation that would change burden of proof and causation standards for a number of employment discrimination claims was reintroduced in the House and Senate last Tuesday. The Protecting Older Workers Against Discrimination Act (“POWADA”) would overturn the Gross and Nassar decisions that toughened the burdens of proof for employees bringing the aforementioned discrimination claims.
The POWADA would provide that the more lenient motivating factor standard would apply not just to ADEA claims, but also to retaliation claims involving race, sex, national origin and religion, as well as claims brought under the Americans with Disabilities Act (“ADA”) and Rehabilitation Act of 1973.
The employment attorneys at Spitz, The Employee’s Law Firm, will continue to follow Congress’ action and/in inaction in relation to the POWADA.
If you are an employee over the age of 40 and believe that you are being discriminated because you are older than other employees; or have be wrongfully terminated and replaced with some younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation at 866-797-6040. Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently.
The materials available at this employment law website are for informational purposes only and not for the purpose of providing legal advice. Your best option is to contact an Ohio attorney to obtain advice with respect to any age discrimination claim questions or any particular employment law issue that you may have. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm or any individual attorney.