Congress Weighs Legislative Override of Supreme Court Age Discrimination Decision
Last June, many were surprised by the Supreme Court's decision in Gross v. FBL Financial, which held plaintiffs bringing claims for age discrimination under the Age Discrimination in Employment Act (ADEA) to a higher standard of proof than is required for plaintiffs who sue under other statutes for discrimination on the basis of gender, race, religion or pregnancy. The FBL Financial decision, authored by conservative Justice Clarence Thomas, was roundly criticized by advocates for employees. Congress is now considering a legislative override, a proposal that was just endorsed by the New York Times.
http://www.nytimes.com/2009/10/13/opinion/13tue3.html?_r=1&ref=opinion
Current Democratic control of Congress may mean that H.R. 3721, which would overturn the FBL Financial decision, likely will be passed in the near future, a reality that impacts strategy for litigants on both sides of age discrimination claims.
H.R. 3721 includes a retroactivity provision, so if this bill passes it will be as if the FBL Financial case was never decided. Attorneys representing employers may have a very short window of time to get their cases to trial and take advantage of the pro-employer FBL case. In the meantime, Plaintiffs' attorneys should be trying to delay their trials, with the hope of getting a more favorable jury instruction under a new law, and avoiding FBL's narrow reading of the Age Discrimination in Employment Act.
Here's the link to the proposed house bill:
http://lawyersusaonline.com/wp-files/pdfs/protecting-older-workers-against-discrimination-act.pdf