Survey: Louisianians face age discrimination in workplace

By Michael Patrick Welch
Contributing Writer

According to a new AARP telephone survey conducted in March, 70 percent of Louisiana residents believe people age 50 and older face age discrimination in the workplace, while 63 percent said they believe “age would be an obstacle to finding work.” A full 96 percent of those polled think older Americans should be protected from age discrimination just like they are from sex or race discrimination.

“A majority of Louisianans say based on what they’ve seen or experienced in the workplace, people over the age of 50 face age discrimination on the job,” said Nancy McPherson, AARP Louisiana State Director. “Con­sidering that many of us will need to stay in the workforce longer to make ends meet and save for retirement, a majority of Louisianans across ideological lines…support Protecting Older Workers Against Discrimination Act (POWADA).”

A 2009 Supreme Court decision in Gross v. FBL Financial changed the standard older workers must meet when attempting to prove that their employer violated the federal Age Discrimination in Employment Act (ADEA). POWANDA reintroduces legislation aimed to roll back that decision, placing the burden of proof back on employers.

POWANDA is modeled on the Civil Rights Act of 1991, which passed the Senate on a bipartisan vote of 93 to five. That Act codified the “motivating factor” framework for race, sex, national origin and religion discrimination claims under Title VII of the Civil Rights Act of 1964.

Previously, when firing an older worker, the employer had to prove it would have made the same decision without consideration for the employee’s age. The Gross decision changed that, placing the burden of proof on the employee, who now has the more difficult task of proving that the employer wouldn’t have fired them “but for” their age. As a result, many wronged individual older workers are never able to compile enough evidence against a company to even get the case before the courts.

In contrast, plaintiffs alleging discrimination based on race, sex, national origin, and religion need only prove that discrimination was a “motivating factor.” The new legislation, POWADA, would restore the old standard, providing employees a more level playing field when fighting age discrimination in court.

Though still in the introduction phase, the new age discrimination bill comes at a time when the average length of unemployment between jobs for older workers is nearly a year.

The POWANDA bill is sponsored by Senator Tom Harkin (D-IA), chairman of the Health, Education, Labor and Pensions (HELP) Committee. His six co-sponsors include Elizabeth Warren (D-MA), plus senators Patrick Leahy (D-VT) and Chuck Grassley (R-IA) the chairman and ranking member of the Senate Judiciary Committee respectively.

No Louisiana senators have yet signed on or otherwise publicly supported POWANDA. Emails were sent to nine Louisiana senators for comment, but none responded in time for this article.

According to AARP, 83 percent of those polled in Louisiana favor passage of the Protecting Older Workers Against Discrimination Act (POWADA). Of those surveyed, 91 percent said they “strongly” endorsed the bill, with only five percent opposing passage.

“The Supreme Court’s divisive holding in Gross has created uncertainty in our civil rights laws, making it incumbent on Congress to clarify our intent and the statutory protections that all hard­-working Americans deserve,” said Senator Leahy. “Our bipartisan bill…makes it clear that employers cannot get away with age discrimination by simply coming up with a reason to terminate an employee that sounds less controversial.”

“The decision in the Gross case has had a major impact on employment discrimination litigation across the country,” said Senator Grassley. Reportedly, lower courts have also applied Gross to claims alleging discrimination on the basis of disability. In June of 2013, the Supreme Court applied Gross to retaliation claims based on race, sex, national origin and religion under the Civil Rights Act of 1964. “[POWANDA] overturns the Gross decision in age discrimination cases, disability discrimination cases, and retaliation cases. Last month, the Supreme Court extended the Gross decision to retaliation cases. The need for the bill is even greater than before.

This article originally published in the May 26, 2014 print edition of The Louisiana Weekly newspaper.