Let's say that my boss decides I'm too old to do my job, blogging about stuff. By law, he couldn't fire me because of my age.
But he'd still like to find a way to get rid of me. He stops giving me assignments, and tells everyone it's because I'm old and slow.
I complain to him and others about his unequal treatment, and in retaliation, he moves me to the group that waters our plants. I quit and sue. Even if I could show that I was treated badly because of my age, the boss would have the chance to show we'd had other disagreements in the past and that's why I was moved.
By this time, my suit is not about discrimination itself, but my view that I was "retaliated against" for my complaint. After all, I still have a job, don't I?
Though a June 24 ruling by the U.S. Supreme Court doesn't specifically address age discrimination, I'd get no comfort from it in my hypothetical case. The ruling held that claims of "retaliation" connected with workplace discrimination need to meet a stricter standard than cases about discrimination itself.
Background on this case: Will Protection from Discrimination Slip?
In deciding University of Texas Southwestern Medical Center (UTSW) v. Nassar, ( full decision here - .pdf) Justice Anthony Kennedy, writing for the five-judge majority, says that claims of retaliation are different from those of discrimination. He says the law protects employees when race, color, national origin, gender or religion are even a fraction of the reason for a worker's being fired, demoted or otherwise badly treated.
But when a worker complains about discrimination and claims that job action (retaliation) is taken because of those complaints, another, stricter standard applies: the worker's protected status has to be the overriding reason that the action occurs; it wouldn't have happened if the worker wasn't part of that group.
If other reasons are a significant part of the mix, the worker's suit should fail. That, writes Kennedy, was the intention of Congress in writing and revising its discrimination laws.
Writing for the four-judge minority, Justice Ginsburg says that if employees can be fired or harassed because they complain about discrimination, then discrimination will flourish in the workplace. There's no separating the bad conduct from the act of calling attention to it, in her view, and no reason for stricter standards of proof to apply.
Will this decision make age discrimination cases harder to bring and win? AARP thinks so, but says the decision opens the way to a fix that could work across civil rights, disability and age discrimination cases.
The Protecting Older Workers Against Discrimination Act (POWADA), is a bill in Congress to clarify the law on age discrimination, as well as other civil rights laws, including Title VII retaliation cases like Nassar.
"We concur with [Justice Ginsburg's] dissent," says AARP in a statement, "that the ball is in Congress' court.... The Nassar decision makes it all the more imperative for Congress to pass the POWADA bill this year on a bipartisan basis."
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