Michael Foreman to brief Capitol Hill staff on age discrimination

Two Supreme Court decisions within the last five years have made proving age discrimination claims and for proving unlawful retaliation when an employee is punished for opposing an unlawful employment practice more difficult for employees, and Professor Michael Foreman is working to educate Capitol Hill staff on how a proposed change in federal law could help older workers and those who challenge unlawful discrimination. A three-person panel will discuss the Protecting Older Workers Against Discrimination Act (S. 1391, HR 2852), a piece of bipartisan legislation aimed at restoring legal standards that had been in place before the Supreme Court decided Gross v. FBL Financial Services (2009) and University of Texas Southwestern Medical Center v. Nassar (2013). 

“Both Supreme Court decisions in Nassar and Gross increased the burden on those seeking to prove discrimination,” said Foreman, who directs the Civil Rights Appellate Clinic at Penn State Law and led the Clinic in advocacy efforts on both cases. Last year, Civil Rights Appellate Clinic students wrote an amicus brief for Nassar signed by eighteen organizations; in 2011, the clinic served as counsel of record for five national civil rights organizations, submitting an amici curiae brief in Gross.

“Passage of the Protecting Older Workers Against Discrimination Act would return the law to where it was before these two decisions and make it clear that age, disability or the fact that you opposed an employment practice as unlawful should not be a motivating factor in workplace decisions,” said Foreman, who explained that Nassar and Gross decisions say that there is some tolerable level of age discrimination or retaliation as long as it is “a” reason, not “the” reason for the adverse employment decision. 

HR 2852 is sponsored by Senators Tom Harkin (D-IA), Chuck Grassley (R-IA), and Patrick Leahy (D-VT). The other two panelists are Jack Gross, named plaintiff in Gross v. FBL Financial Services (2009) and Cristina Martin Firvida, director of financial security and consumer affairs, AARP Government Affairs.