Age Discrimination Suits Jump, But Wins Are Elusive

Feb 15, 2012
Originally published on February 16, 2012 8:53 am

For older Americans looking for work, finding a job can be a tremendous challenge. Someone 55 or older will typically take three months longer to find employment than the average job seeker.

And with more people of all ages looking for work in the slow economy, age discrimination complaints are on the rise — but becoming harder to win.

Employment law experts say that has a lot to do with one particular case: Gross v. FBL Financial Services Inc.

'Persona Non Grata'

One day in 2003, Jack Gross saw a memo detailing staffing changes at the insurance company where he worked.

"I got this ahead of time, and it just jumped off the page," he recalls. "Everybody that they're naming here is my age or older. Nobody under 50 was getting demoted. The only promotions were people who were basically a generation younger than us."

Gross, 54 and a vice president at FBL Financial at the time, was among a dozen employees demoted that day. All were older workers, and all were high performers. But Gross alone decided to sue his employer for age discrimination.

"That was terrible. Once you file suit against your company, you're pretty much persona non grata," he says. "I felt like I was crossing enemy lines."

Former friends at work spurned Gross. He was excluded from meetings and received virtually no emails or phone calls. The ostracism made him sick with stress, but he stayed on the job another nine years because he felt he had no choice. What employer in his native Des Moines, he thought, would hire someone older who had also filed an age discrimination suit?

Gross eventually won in lower court, but the case was appealed to the U.S. Supreme Court — where Gross lost. In a 5-4 decision, the high court ruled that a plaintiff must prove, with a preponderance of evidence, that age was the reason for discrimination.

In effect, Gross v. FBL increased the burden of proof for age discrimination suits. Because of the ruling, experts say hundreds of other cases have been thrown out.

"Personally, that's one of the things that I resent most," Gross says. "That my name is being associated with so much injustice and unfairness."

Complaints On The Rise

Even before the ruling, it was costly and difficult to bring such cases. Gross says it cost $11,000 just to print the documents related to his case.

And Gross' suit coincides with a time when the Equal Employment Opportunity Commission says age discrimination is becoming a bigger problem.

Stuart Ishimaru, an EEOC commissioner, says age-related charges make up a growing number of complaints filed at the commission. And, he says, "I think that the number of formal complaints that come in to us understate the nature of the problem."

Ishimaru says that's because dismissal or demotion cases like Gross' are hard enough to prove. It's even more challenging, he says, to figure out how to prosecute age discrimination in hiring.

Of all the issues the EEOC deals with, Ishimaru says, hiring has been "a real conundrum for us. And frankly in this economy, where people are looking for jobs, they don't have time to worry about a discrimination suit. They're not going to be thinking about this."

Gerald Maatman, a Chicago attorney who represents employers in age discrimination cases, says such suits are high stakes for companies because the monetary damages involved are typically higher than other claims.

But, Maatman admits, plaintiffs have a difficult time bringing hiring cases. "Those claims are very, very difficult to prove, in that the smoking gun evidence that needs to exist to prove a successful claim is very difficult to find in those circumstances," he says.

'A Chilling Effect'

Gross' case has had a chilling effect, according to Dan Kohrman, a senior attorney at the AARP Foundation, which helps bring age discrimination cases.

"These kinds of decisions scare off workers and scare off lawyers," Kohrman says. "Because the clear trend is, it's harder to prove an age case. You may not get a fair shake in all kinds of interpretations of the law."

Kohrman says these days, plaintiffs are seeing better luck in state courts than at the federal level. States like California, Michigan and New York all have relatively strong protections for older workers.

But, Kohrman adds, "If you don't live in that kind of state, then it is tough. It is really tough."

As for Gross, he says his best hope is that his case will prompt Congress to pass tougher laws against age discrimination.

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Older people looking for work often have a harder time finding a job. It takes someone over the age of 55, on average, three months longer to find a job than a younger person. And while age discrimination is a growing concern, it's becoming harder to prove. NPR's Yuki Noguchi reports.

YUKI NOGUCHI, BYLINE: One day in 2003, Jack Gross read a memo. It detailed staffing changes at his insurance company.

JACK GROSS: I got this ahead of time, and it just jumped off the page. Everybody that they're naming here is my age or older. Nobody under 50 was getting demoted. The only promotions were people who were basically a generation younger than us.

NOGUCHI: Gross was 54 years old at the time and a vice president at FBL Financial. He was among a dozen people demoted that day. All were older, and all were high performers. But Gross alone decided to sue FBL for age discrimination.

GROSS: That was terrible. Once you file suit against your company, you're pretty much persona non grata. I felt literally like I was crossing enemy lines.

NOGUCHI: Former friends at work spurned Jack Gross. He was excluded from meetings and received almost no emails or phone calls. This made him sick with stress. But he stayed on the job another nine years because he believed he had no other choice. What employer in his native Des Moines would hire someone older and who had filed a suit?

Eventually, Gross won in lower court. But the case was appealed to the Supreme Court, where Gross lost. And in a 5-4 decision, the high court ruled that a plaintiff must prove with a preponderance of evidence that age was the reason for the discrimination. In effect, Gross versus FBL increased the burden of proof for age discrimination suits. Because of the ruling, experts say hundreds of other cases have been thrown out.

GROSS: Personally, that's one of the things I resent most, is that my name is being associated with so much injustice and unfairness.

NOGUCHI: Even before the ruling, it was costly and difficult to bring such a case. Gross says it cost $11,000 just to print documents related to his case. And it coincides with a time when the Equal Employment Opportunity Commission says age discrimination is becoming a bigger problem. Stuart Ishimaru is an EEOC commissioner. He says age-related charges make up a growing number of complaints filed at the commission.

STUART ISHIMARU: I think that the number of formal complaints that come in to us understate the nature of the problem.

NOGUCHI: Ishimaru says dismissal or demotion cases like Gross' are hard enough to prove. He says it's much more challenging to prove discrimination in hiring.

ISHIMARU: For all of the issues we deal with, it's a real conundrum for us. And frankly, in this economy where people are looking for jobs, they don't have time to worry about a discrimination suit, they're not going to be thinking about this.

NOGUCHI: Gerald Maatman is a Chicago attorney who represents employers in these types of cases. He says age discrimination lawsuits are high stakes for companies, because the monetary damages involved are typically higher than other claims. But, Maatman admits, plaintiffs have a tough time bringing hiring cases.

GERALD MAATMAN: Those claims are very, very difficult to prove in that the smoking gun evidence that needs to exist to prove a successful claim is very difficult to find in those circumstances.

NOGUCHI: The Gross case has a chilling effect, says Dan Kohrman, a senior attorney at the AARP Foundation, which helps bring age discrimination cases.

DAN KOHRMAN: These kinds of decisions scare off workers and scare off lawyers because the clear trend is it's harder to prove an age case. You may not get a fair shake in all kinds of interpretations of the law in an age case.

NOGUCHI: Kohrman says plaintiffs these days are seeing better luck in state courts. States like California and Michigan and New York have stronger protections for older workers. But...

KOHRMAN: If you don't live in that kind of state, then it is tough. It is really tough.

NOGUCHI: As for Jack Gross, he says his best hope is that his case will prompt Congress to pass tougher laws against age discrimination.

Yuki Noguchi, NPR News, Washington. Transcript provided by NPR, Copyright NPR.