Loebsack, Harkin work to reverse impact of age discrimination ruling

By James Q. Lynch

A pair of Iowa congressmen has gone to bat for older Iowa workers.

Sen. Tom Harkin and Rep. Dave Loebsack are pushing for legislation to reverse a U.S. Supreme Court ruling that put the burden of proof of age discrimination on employees.

In a case brought by Iowan Jack Gross, the court reversed decades-old federal age discrimination legislation that required employers to prove they had not discriminated on the basis of age.

“The court has opened the door to discrimination to older workers and now Congress needs to close that door,” Harkin said.

It's a huge issue for Iowa, said Harkin, who chaired a Senate Health, Education, Labor and Pension Committee hearing on a bill to protect older workers. Iowa ranks fourth in the nation in the percentage of people age 60 and older. Nearly 17 percent of the Iowa workforce or about a quarter of a million people are 55 or older.

In the House, Loebsack is pushing similar legislation, H.R. 3721, the Protecting Older Workers Against Discrimination Act, that would restore protections for older workers removed by the court's 2009 decision, Gross v. FBL Financial.

“Iowa is an aging state and I am concerned that this decision will adversely affect many of Iowa's older workers,” the 2

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District Democrat said. “It is unfair and unconscionable that older workers were singled out and stripped of protections that have existed for decades.”

In Gross, the Supreme Court overturned a well-established precedent and made it harder for older workers to enforce their rights. The court's ruling increases the burden of proof on victims of age discrimination, forcing older workers to prove that age was the sole factor in decisions made by their employer. Previous to this ruling, older workers, similar to those alleging race, sex, national origin or religious discrimination, had to prove that age was a motivating factor.

Gross brought suit against his employer, FDL Financial, after he was demoted and replaced by a younger, less-qualified person. According to Harkin, Gross had been a model employee, earning performance reviews in the top 3 percent at the company for more than a decade.

An Iowa jury found in Gross' favor, but the Supreme Court overturned the decision.

“A narrow majority didn't just rewrite the rules it arbitrarily rewrote the law,” Harkin said. The court tore up decades-old standard. It invented a new standard that makes it prohibitively difficult for a victim to prove age discrimination.”

According to Harkin, under the new standard, a victim bears the full burden of proving that not only was age a motivating factor, “but the only, the decisive factor.”

“This extremely high burden of proof has radically undermined older workers' ability to hold employers accountable,” he said. Unlawful discrimination is often difficult to detect because employers go out of their way to conceal their true intent. “Rarely does it involve a smoking gun.”

The good news, Harkin said, is that the court's “arbitrary ruling” is not the final say.

“Congress has the power to step in with a legislative remedy,” he said. “That's what we did when the court overstepped its bounds and weakened the rights of women in the workplace. We passed the Lilly Ledbetter Fair Pay Act.”

Harkin is optimistic about the prospects for the age discrimination legislation.

“This overreaching by this Supreme Court -- talk about activism -- is so flagrant that I just think Congress is going to do something about it,” he said.

To see a video of Loebsack and Gross speaking at a House hearing on the bill, visit

www.youtube.com/watch?v=R70rpfWWx7g.