It's not age discrimination if you can't prove it

Forget about winning an age-discrimination lawsuit if you get laid off in this lousy economy. The U.S. Supreme Court ruled Thursday that a plaintiff has to prove that age discrimination was the singular cause of a job action. That sets an almost impossible standard for plaintiffs, no matter how blatant the discrimination might be.

I've talked to a number of people who were certain that their age was what prompted their layoff or change in job or pay. None of them had filed a lawsuit because they knew how difficult it is to prove age discrimination. You almost have to uncover a written memorandum stating "Joe is too old for this job; let's replace him with someone younger." If you lose a job or a promotion to a younger, less experienced, less qualified applicant, it's still difficult to prove that age discrimination was the reason for the snub. A discrimination suit can drag on for years. As one attorney told me, "it can consume your life." Few victims of age discrimination want to go through that ordeal. They'd rather just "move on" and try to find a new career. This economy makes moving on harder to do.

Age discrimination has been a particular concern in this recession, and age discrimination claims are rising. Millions of baby boomers, approaching retirement, tempered by decades of solid experience, have found themselves laid off as companies reduce payrolls. The seniority of these workers make them tempting targets for penny pinchers. Their experience and seniority come with higher pay rates. Replacing them with younger, lower-paid workers might be a good fiscal decision, but it's also age discrimination — you just have to be able to prove it.

Five members of the Supreme Court made that even more difficult Thursday. The majority ruled that age must be the sole motive in the discrimination if a plaintiff is to succeed. The plaintiff in this case had won a $47,000 judgment at trial, but the court reversed that. You can be certain that the legal fees have exceeded the size of the judgment, which is now canceled.

Interestingly, the oldest member of the court, John Paul Stevens, 89, wrote the dissenting opinion. He said the five-member majority (Thomas, Roberts, Scalia, Alito and Kennedy) had displayed "utter disregard" for precedent and the intent of Congress in passing the age discrimination law. The minority (Stevens, Ginsburg, Souter and Breyer) said that if a plaintiff can show that age was a factor in the job action, then the employer must show that he had legitimate other reasons for taking the action.

Sen. Patrick Leahy, D-Vt., compared the case to the Lilly Ledbetter sex discrimination case from last year, which infuriated Congress and led to corrective legislation. Age discrimination is rampant, perhaps exceeding gender or race discrimination, but plaintiffs have a very hard time proving this discrimination. Five members of the Supreme Court just made matters even more difficult.