The New York Times reported last week that the Supreme Court’s 2009 ruling in Gross v. FBL Financial Services has changed the legal landscape for age discrimination cases. The problem? Even though many older workers who lose their jobs think that age discrimination played a role in their terminations, the burden of proof required is now so high that lawyers just don’t see the cases as winners.
Given that the Times didn’t back up its assertion that “most lawyers won’t even take age discrimination cases” with any numbers, I was just a bit skeptical. After all, the Equal Employment Opportunity Commission’s statistics show that the number of these lawsuits has hit a plateau, even as we’re still seeing the after effects of layoffs brought on by a bad economy. What’s more, there are a lot more older Americans working than there used to be, and they’re sticking it out longer in the workplace.
I talked by telephone with Daniel Schwartz, an attorney at Shipman and Goodwin in Hartford, Conn., who represents employers in these types of cases. I asked him, “Do you really think that lawyers won’t take these plaintiffs’ cases anymore?”
“Not at all,” he said. “I have friends who are plaintiffs’ lawyers and are taking these cases, and I am still representing clients in defending against them.”
According to Schwartz, 95 percent of cases settle. “The new burden of proof may reduce the settlement value of a case,” he says, “but employees can still achieve a positive settlement.”
Right. So even though it might be harder to win an age discrimination case at trial these days, a financial settlement is well within the realm of possibility. Given that reality, what employment lawyer who thinks a potential client has a viable claim would turn it down?
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