Age discrimination continues to grow

The scourge of discrimination by employers due to age merits innovative academic research identifying ageism in the workplace ("Age-old discrimination," Aug. 3). But the problem also warrants solutions that, regrettably, must come from the legal sphere.

As the article notes, the U.S. Supreme Court in 2009 eviscerated the federal age discrimination law. Its ruling in an Iowa case effectively nullified using that law to challenge age discrimination by raising the standard for claimants to a nearly unachievable level.

Now they must prove that an employee's age was the "but for" reason for an adverse action, such as refusal to promote or lay off. The justices did it again, this June, with the federal retaliation law by creating the same virtually impregnable "but for" challenges.

The emasculation of the discrimination laws at the federal level should be countered, especially because the scourge of age discrimination has become a surge. Proposals have been advanced in Congress to overturn the Supreme Court's age bias ruling, and there is a possibility that such efforts could succeed, because they have some bipartisan support.

The same approach was effectively used in 2009 when Congress overrode a devastating 2007 Supreme Court ruling that nearly destroyed the law providing equal pay for women by enacting the Lilly Ledbetter Law, named after the losing litigant in that 2007 case.

But even without congressional action, the states can get involved. Minnesota, like most of them, has its own antidiscrimination laws, which can be construed differently and more expansively than the constricted construction given to the federal measures. The Minnesota courts have not yet addressed the state age discrimination and retaliation laws in the wake of these recent Supreme Court rulings, but the opportunity exists to do so in a way that is more equitable for employees.

Legislation also is a possibility. This spring, the Legislature passed, and Gov. Mark Dayton signed, a law containing a number of amendments strengthening the state's primary antiretaliation statute: the whistleblower law. Similar efforts may be taken to combat age bias in Minnesota.

Identifying the problem of age discrimination is one thing, as the educators have keenly done. Providing remedies is in the hands of elected officials and judicial decisionmakers.

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Marshall H. Tanick is a Minneapolis employment law ­attorney.