Supreme Court Raises the Bar for Older Workers

Posted by on Jun 23, 2009 in Age Discrimination, Supreme Court

By: Tiffanie Benfer, Esq.
Last week’s 5-4 decision in Gross v. FBL Financial Services, authored by conservative Justice Clarence Thomas, took several surprising turns. First, the Court addressed an issue — standard of proof for claims under the Age Discrimination in Employment Act (ADEA) — that was not even raised by the parties. Second, the Court declined to apply settled caselaw and evidence of Congressional intent for other statutes barring discrimination. The end result is an interpretation of the ADEA that makes the burden of proof for older workers bringing federal claims of age discrimination much higher than it is for workers alleging other forms of discrimination.
What does the FBL Financial decision say?
The Court’s decision turns on shifting burdens of proof in age discrimination cases, the kind of topic that makes non-lawyer eyes glaze over. To a large extent, it comes down to the difference between “a” and “the.” Under Title VII (which protects workers from discrimination on the basis of classifications such as race and gender), when there is a case of “mixed motives,” there is a shifting burden of proof, and employees must show that the protected class was a motivating factor. The FBL Financial decision basically takes away the option of arguing mixed motives in an age discrimination case – employees must argue that age was the motivating factor, not just a motivating factor.
What does FBL Financial mean in practice?

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Additional Compensation Warranted to Offset Tax Implications of Discrimination Awards

Posted by on Feb 13, 2009 in Age Discrimination, Taxes

By: Tiffanie Benfer, Esq.
Two weeks ago the Third Circuit Court of Appeals in Eshelman v. Agere Systems ruled that prevailing Plaintiffs in employment discrimination cases are entitled to be made whole for injuries caused by employer discrimination.
Eshelman argued that the taxes she would have to pay on the lump sum award of back pay would be higher than what she would have had to pay in the normal course of her employment had she not been discriminated against. In some cases, a lump sum payment award places the employee in a higher tax bracket for that year. A straight award of back pay would therefore, not make the employee “whole” for the damages incurred as a result of the employer’s discrimination.
Eshelman asserted that an additional monetary award was warranted to offset the negative tax consequences of the back pay award she received in her favorable finding. Eshelman’s argument is completely logical. To make her pay higher taxes on income she would have earned but for her employer’s discrimination would just add insult to injury.

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EEOC Backlog Swells. What Does This Mean for Your Case In the EEOC?

Posted by on Feb 4, 2009 in Age Discrimination, Caregiver Discrimination, Disability Discrimination, Gender Discrimination, National Origin Discrimination, Pregnancy Discrimination, Racial Discrimination, Religion Discrimination, Sexual Harassment, Wrongful Termination

By: Tiffanie Benfer, Esq.
It isn’t a newsflash to those of us who regularly deal with the EEOC: the federal agency charged with protecting Americans from discrimination is overworked, with a tremendous backlog of cases. The Washington Post reported Monday that because of increased claims and decrease in staff, the case backlog is now at 73,951 – up 35 % from a backlog of 54,970 a year ago.
http://www.washingtonpost.com/wp-dyn/content/article/2009/02/02/AR2009020202452.html
This means that more and more cases are languishing in the EEOC. That’s a problem when it comes to getting to the truth behind a claim, because witnesses move away or forget what happened. In this climate, it is essential for both employees and employers to obtain independent legal counsel to move a case along, to secure witness statements, to conduct investigations, and — most importantly — to frame the issues for an overworked investigator.

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Age Discrimination in the Philadelphia Fire Department

Posted by on Feb 1, 2009 in Age Discrimination, Hiring Criteria, People In the News

By: Tiffanie Benfer, Esq.
What kind of legal advice did the Philadelphia Fire Department rely on when it instituted a policy of not hiring fire fighters over the age of 40? Seven applicants proved that they were highly qualified and could pass the physical test, but they were still turned down solely because of age. I’m gratified, but not surprised, that the Pennsylvania Human Rights Commission (PHRC) found last week that the policy violates the state prohibition of age discrimination.
Here’s a link to the story in the Philadelphia Inquirer.
http://www.philly.com/philly/news/local/38741837.html

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