As age discrimination law turns 50, bias becomes subtler, harder to prove

August 23, 2017 By Dave Stafford
The Indiana Lawyer

At 50, the federal Age Discrimination in Employment Act just isn’t its old self.

Time was, the law enacted in 1967 gave older workers the same protections as laws designed to blunt workplace discrimination on the basis of race, gender and classes protected under Title VII of the Civil Rights Act. But those days are over, gone the way of the rotary telephone.

“It’s a more stringent burden of proof” for age bias claims, said Jason Cleveland, a plaintiffs’ attorney at Cleveland Lehner Cassidy in Indianapolis. A 5-4 U.S. Supreme Court decision in 2009, Gross v. FBL Financial Services, 557 U.S. 167, held that age discrimination claimants must prove “but for” their age, they would not have experienced an adverse employment action. By contrast, Title VII protections shift the burden to an employer to prove that discrimination on the basis of race, gender or other protected classes was not a factor.

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