Supreme Court Activists?

An editorial in the NYT yesterday brings our attention to a Supreme Court ruling that:

Essentially, the ruling has shifted the burden of proof in so-called mixed-motive cases. Previously, if a worker could show that age was one of the factors in a layoff, demotion or other adverse employment decision, the employer was then required to show that it had acted for a legitimate reason other than age bias. Going forward, workers will bear the full burden of proving that age was the deciding factor — an ultrahigh hurdle.

The Supreme Court sided with employers on this and I have mixed thoughts. There are jobs that have an element of youthfulness or vigor in them. Television and marketing and sales come to mind but there may be others. Obvious to me is that if a TV station wanted a more youthful look they would not renew contracts and that would be legitimate. But do all on-air personalities have contracts?

But in other workplaces, like restaurants and department stores, perhaps age discrimination is more pervasive. Sometimes age is an excuse and not a reason to let people go.

In this instance the Supreme Court chose an activist role:

In taking this case, the court had agreed to review a comparatively narrow question: the type of proof required to trigger the shifting of the burden to the defendant in a mixed-motive age-discrimination case. But the justices went much further, ruling to end the burden-shifting approach entirely. And they did it without inviting re-argument or supplemental briefing from the parties to the case it was considering.

Activists on the Supreme Court? Perhaps.

I am undecided on this one. I just have this sinking feeling that I may want to sell jeans at the GAP or earrings at Claire’s some day and I think I could always compete on competence but maybe not on age or looks.


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