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Wed February 15, 2012
Age Discrimination Suits Jump, But Wins Are Elusive
Originally published on Thu February 16, 2012 8:53 am
For older Americans looking for work, finding a job can be a tremendous challenge. Someone 55 or older will typically take three months longer to find employment than the average job seeker.
And with more people of all ages looking for work in the slow economy, age discrimination complaints are on the rise — but becoming harder to win.
Employment law experts say that has a lot to do with one particular case: Gross v. FBL Financial Services Inc.
'Persona Non Grata'
One day in 2003, Jack Gross saw a memo detailing staffing changes at the insurance company where he worked.
"I got this ahead of time, and it just jumped off the page," he recalls. "Everybody that they're naming here is my age or older. Nobody under 50 was getting demoted. The only promotions were people who were basically a generation younger than us."
Gross, 54 and a vice president at FBL Financial at the time, was among a dozen employees demoted that day. All were older workers, and all were high performers. But Gross alone decided to sue his employer for age discrimination.
"That was terrible. Once you file suit against your company, you're pretty much persona non grata," he says. "I felt like I was crossing enemy lines."
Former friends at work spurned Gross. He was excluded from meetings and received virtually no emails or phone calls. The ostracism made him sick with stress, but he stayed on the job another nine years because he felt he had no choice. What employer in his native Des Moines, he thought, would hire someone older who had also filed an age discrimination suit?
Gross eventually won in lower court, but the case was appealed to the U.S. Supreme Court — where Gross lost. In a 5-4 decision, the high court ruled that a plaintiff must prove, with a preponderance of evidence, that age was the reason for discrimination.
In effect, Gross v. FBL increased the burden of proof for age discrimination suits. Because of the ruling, experts say hundreds of other cases have been thrown out.
"Personally, that's one of the things that I resent most," Gross says. "That my name is being associated with so much injustice and unfairness."
Complaints On The Rise
Even before the ruling, it was costly and difficult to bring such cases. Gross says it cost $11,000 just to print the documents related to his case.
And Gross' suit coincides with a time when the Equal Employment Opportunity Commission says age discrimination is becoming a bigger problem.
Stuart Ishimaru, an EEOC commissioner, says age-related charges make up a growing number of complaints filed at the commission. And, he says, "I think that the number of formal complaints that come in to us understate the nature of the problem."
Ishimaru says that's because dismissal or demotion cases like Gross' are hard enough to prove. It's even more challenging, he says, to figure out how to prosecute age discrimination in hiring.
Of all the issues the EEOC deals with, Ishimaru says, hiring has been "a real conundrum for us. And frankly in this economy, where people are looking for jobs, they don't have time to worry about a discrimination suit. They're not going to be thinking about this."
Gerald Maatman, a Chicago attorney who represents employers in age discrimination cases, says such suits are high stakes for companies because the monetary damages involved are typically higher than other claims.
But, Maatman admits, plaintiffs have a difficult time bringing hiring cases. "Those claims are very, very difficult to prove, in that the smoking gun evidence that needs to exist to prove a successful claim is very difficult to find in those circumstances," he says.
'A Chilling Effect'
Gross' case has had a chilling effect, according to Dan Kohrman, a senior attorney at the AARP Foundation, which helps bring age discrimination cases.
"These kinds of decisions scare off workers and scare off lawyers," Kohrman says. "Because the clear trend is, it's harder to prove an age case. You may not get a fair shake in all kinds of interpretations of the law."
Kohrman says these days, plaintiffs are seeing better luck in state courts than at the federal level. States like California, Michigan and New York all have relatively strong protections for older workers.
But, Kohrman adds, "If you don't live in that kind of state, then it is tough. It is really tough."
As for Gross, he says his best hope is that his case will prompt Congress to pass tougher laws against age discrimination.