Grassley & Harkin Introduce Bipartisan Bill To Fix Supreme Court Assault On Older Workers

Nearly three years ago, the Supreme Court rolled back decades of precedent to make it harder for older workers to stand up to age discrimination in the workplace:

Employment discrimination cases are difficult to prove because the plaintiff ultimately must show what their boss was thinking at the time they were fired or demoted–it is illegal for an employer to fire a worker because they think the worker is too old or too black or too female, but not because they think the worker is incompetent or poorly dressed. Since workers don’t have ESP, the Supreme Court long ago put certain procedures in place to make sure that laws banning discrimination amount to more than just empty promises.

“Mixed motive” suits are an example of these procedures. To win a mixed motive case, a plaintiff had to prove that discrimination was one of the reasons behind their boss’ decision to fire or demote them. It was then up to their boss to prove that they would have made the same decision regardless of the worker’s race or gender or age. Workers are spared the nearly impossible task of having to prove that that their boss was thinking only of bigotry when they lashed out at their employee; and employers are given a fair chance to prove that discrimination is not the real reason why the worker was cast aside. . . .[Gross v. FBL Financial Services] eliminates such claims in age discrimination cases. Thanks to Justice Thomas’ majority opinion, victims of age discrimination are helpless unless they can get inside their boss’ head and show that their boss would have behaved differently if the victim had been a little younger.

A bill introduced Tuesday by Sens. Chuck Grassley (R-IA) and Tom Harkin (D-IA) will overturn Gross and restore to older workers the same ability to fight discrimination that they agreed before a 5–4 Supreme Court took it away from them. Although many Senate Democrats have long supported undoing the justices’ mischief in this way, this is the first time a Republican has signed on to the effort — Grassley’s endorsement of the bill is a hopeful sign that it could become law.


Enacting this bill is not simply important because it will restore necessary rights to older workers, it also is important to push back against a Supreme Court that openly flouts its own precedents. Justice Thomas’ majority opinion in Gross acknowledged that his decision was at war with longstanding precedent, but he dismissed this fact by simply saying “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.” In other words, Thomas believes that, because the Supreme Court is now dominated by five far right justices, it should no longer have to follow precedents from a more sensible era.