Here’s a twist, courtesy of the U.S. Supreme Court’s 2009 Gross v. FBL Financial Services age discrimination decision. The court ruled that employees have to show that “but for” their age, their employer wouldn’t have fired them.
Prior to that decision—even if an employee could show age might have been a factor in a firing decision—all an employer had to show was that it would have made the same decision whether or not age was a factor.
Not so anymore. Employees now have to produce direct evidence of discrimination—and employers have to attack that evidence head on.
Recent case: Josephine Mora was 62 years old when she was fired from her job as a fundraiser at the Jackson Memorial Foundation. She sued for age discrimination.
Two former employees testified they had heard Mora’s boss tell her, “You are very old, you are very inept. What you should be doing is taking care of old people. … I need someone younger that I can pay less and I can control.” Another former employee heard the supervisor say Mora “is too old to be working here.”
The foundation tried to have the case dismissed by showing the court that it would have decided to terminate Mora whether or not the supervisor had made such comments. The court rejected that argument.
Instead, it ordered a trial. Now a jury will have to sort out whether the foundation fired Mora because of her age. (Mora v. Jackson Memorial Foundation, No. 08-16113, 11th Cir., 2010)
Final note: It is now more important than ever to keep your workplace free of any ageist comments. Employees’ attorneys know the only way to win age cases is with direct evidence and they will scour for that evidence. Don’t let them find any.
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