Thursday, June 18, 2009

Conservative Activist Justices Legislate from Bench Again, this time on Age Discrimination. GOP Protest Imminent?

Any question conservative activism exists and is a controlling influence in the countries highest court? You won't believe this one:

AP — The Supreme Court has made it harder to prove discrimination on the basis of age, ruling against an employee in his mid-50s who says he was demoted because of his age.
In a 5-4 decision written by Justice Clarence Thomas, the court said a worker has to prove that age was the key factor in an employment decision, even if there is some evidence that age played a role. In some other discrimination lawsuits, the burden of proof shifts to the employer once a worker shows there is some reason to believe a decision was made for improper reasons.

Conservative activist and strict constructionist Justice Clarence Thomas also wrote: "We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in the decision."

The court's four most liberal justices dissented ... Justice John Paul Stevens said the court and the Congress have previously rejected Thomas's 'but-for' standard. "Given this unambiguous history, it is particularly inappropriate for the court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII," Stevens said. "I disagree not only with the court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking."

Sen. Patrick Leahy, D-Vt., and chairman of the Senate Judiciary Committee, compared this decision to a 2007 decision that made it more difficult to sue over past pay discrimination. The Democrat-controlled Congress overturned that decision.

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