Age Discrimination Harder To Fight Amid Record Unemployment For Older Workers

A federal judge dismissed an age discrimination case from 18 former employees of the Dallas Morning News in March, repeatedly citing a recent Supreme Court ruling that increased the burden on older workers to prove they've been treated unfairly.

Jack Gross feels bad about it.

"It personally concerns me that I was somehow involved in denying a lot of other people their chance at justice because my case is now being cited so often," said Gross, a former insurance claims administration manager who lives in Des Moines, Iowa.

When a court says a laid off worker failed to prove age was the overriding cause of his or her termination, the judge points to the Supreme Court's decision in Gross v. FBL Financial Group. Gross had sued for age discrimination following a 2003 demotion. Nearly seven years later, after an Iowa jury had taken his side and awarded damages, the Supreme Court changed the rules and made Gross start over.

The court's decision raised the bar for age discrimination complaints. Instead of having to show that age was a substantial motivating factor in a discriminatory employment decision, plaintiffs from 2009 on have had to prove their age was the decisive factor. The decision effectively required plaintiffs to provide direct evidence they'd been discriminated against, according to Michael Foreman, director of the Civil Rights Appellate Clinic at the Pennsylvania State University law school. Foreman testified before the Equal Employment Opportunity Commission last year that "the practical impact of Gross is that courts are now requiring plaintiffs to put forward extremely compelling evidence of age bias."

Lower courts have cited Gross hundreds of times in bias cases. AARP, the powerhouse lobbying group for seniors, said it hasn't tracked exactly how often Gross's case has been used to dismiss an age discrimination case, but said it's happened a "significant" number of times. "Even one is too many," said AARP senior attorney Laurie McCann.

Democrats, led by Iowa Senator Tom Harkin, drafted so-far unsuccessful legislation to undo the Supreme Court's decision in 2009. Gross's other senator, Republican Chuck Grassley, is not a co-sponsor of the Democratic bill but said he is working on separate legislation.

"Jack Gross continues to be an important advocate against age discrimination," Grassley said in a statement to HuffPost. "I've been working for a legislative remedy that would make changes the Supreme Court decision pointed out are necessary to make sure federal law continues to protect the rights of older workers. As a society, we ought to value older Americans' contribution to the workforce and elsewhere, and the law should actually say what was originally intended."

The Supreme Court's new legal headwinds blew in just as the jobs landscape for older workers started providing less shelter. While workers older than 55 still boast lower unemployment rates than younger workers, older layoff victims are more than twice as likely to be out of work for 99 weeks or longer. Among "displaced workers" separated from long-held jobs between 2007 and 2010, older workers were much less likely to find new jobs. In August, the average unemployed worker older than 55 had been out of work for 52.4 weeks, compared with 43 weeks for workers between 25 and 54 years old.

Age discrimination complaints to the EEOC have increased over the past few years, but not dramatically so in proportion to other types of bias complaints. Dozens and dozens of older unemployed workers have told HuffPost that age discrimination is the unbearably obvious reason for their predicament. None of them could prove it, though.

Gross was 54 and had worked at FBL Financial Group for 16 years when, as part of a merger, in 2003 the company changed his title and gave most of his work duties to a younger staffer whom he previously supervised. He alleged in his suit that several other older workers saw job changes that reduced their pension formulas.

Gross said that as soon as he filed his age discrimination complaint with the EEOC, his work life changed.

"I was on several corporate committees. They immediately took me off of all of those like I was going to go in there and sabotage the computer system or something," Gross said, adding that he became isolated from longtime friends. "I started going off eating by myself in a corner because I didn't want to hurt them. And they knew they were being watched for associations with me. I was persona non grata in my own office."

Tom Eppenauer, who had supervised Gross prior to a personnel reshuffling in 2000, said that in 2003, before he left the company that December, he observed the retaliation Gross described.

"He kept his normal desk, and they simply did not provide him any work activities. They didn't invite him to meetings, even though he had superior knowledge to everyone in the department," Eppenauer told HuffPost. "It's hard to fathom. Here's a very highly educated man, very knowledgeable in that field, and they just threw him in the trash."

In a statement to HuffPost, FBL noted that a judge dismissed Gross's retaliation claim in 2005, and that a jury sided with the company in the new trial that followed the Supreme Court decision.

"FBL Financial Group, Inc.'s policies and values do not tolerate discrimination in any form. The history of Jack's case demonstrates FBL's commitment to these values," the company said. "FBL was completely exonerated, Jack was even ordered by the judge to pay FBL's court costs. FBL trusts the media to take into account the legal history of what Jack has claimed versus what he has been able to demonstrate."

Gross said he stuck with the job doing basically nothing until he retired in 2009. Last year he started drawing early Social Security benefits. Now, he said, he spends a lot of time with his grandchildren.

"I haven't really looked for work because I've felt like I've burned bridges," he said. And even if he did search for a new job, he doesn't think he could find one because nobody wants to hire a guy in his 60s. "It's all anecdotal, you can't prove a thing, but I've sure got an awful lot of friends who've been dramatically hurt by this. If they find jobs –- they're college educated people -- they're getting part time jobs as janitors. They can't find anything that’s full time with health benefits. They're just not there. And I'm in a state with one of the lowest unemployment rates in the country."

Mike Sacks contributed reporting.

Arthur Delaney is the author of "A People's History of the Great Recession," HuffPost's first e-book.

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