Proving age discrimination

Now it’s Democrats lamenting “judicial activism.”

Today’s case: The U.S. Supreme Court has ruled that in any suit over age discrimination brought against an employer by a fired employee, it’s entirely up to the employee to prove it (ruling here).

“The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Justice Clarence Thomas wrote in the order overturning an award to a 54-year-old insurance claims adjuster who lost his job to a 40-year-old woman.

The liberal wing of the court lined up behind Justice Paul Stevens who wrote in his dissent, “Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking.”

His comment echoed Senate Judiciary Committee Chair Patrick Leahy. “This overreaching by a narrow majority of the court will have a detrimental effect on all Americans and their families,” Leahy said.

The court’s ruling comes almost a year to the day of a Supreme Court ruling that overturned a similar ruling by a federal appeals court in New York, which held the employee had the burden of proof.

Neither side appeared to address the obvious question: Absent a memo or a phone conversation that said, “Let’s get rid of Joe; he’s old,” how would you prove age discrimination in its entirety?

Discrimination complaints usually rise during recessions and this one is no exception. But it’s not always the older worker. Employees in their 20s and 30s are finding themselves more at risk of a layoff, the Wall St. Journal reported last month.

  • GregS

    “”Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking.”

    Whoa!!! “Resurrects the standard!!!”

    In other words unmaking activism is now activism!!

    So let me see if I have this right, when a majority of justices toss out precedent and manufacture law out of thin air, then they create becomes precendent and must be honored until the end of time.

  • bsimon

    I think we ought to fire some of the older justices & hire some younger minds.