This week we examine the federal laws prohibiting certain types of employment discrimination.

This week we examine the federal laws prohibiting certain types of employment discrimination. The article below suggests these lawsuits will increase significantly, due to the COVID pandemic. After reading the article below, answer these questions, or post a response to another student’s post.

1. What will the plaintiff’s in age discrimination suits need to prove? Refer (cite) both the the lecture and textbook when discussing each element that must be proven.

2. Is the “Safe to Work Act” mentioned at the end of the article a good idea? Or, is there an argument to be made that employers should abide by the ADEA even if the Safe to Work Act is passed? Explain your answer from the perspective of a business owner.

Article:

A flood of age discrimination lawsuits is expected from COVID-19 and the economic downturn

By Harris Meyer

September 1, 2020

https://www.abajournal.com/web/article/flood-of-age-discrimination-suits-expected-with-pandemic-economic-downturn

The novel coronavirus pandemic has raised unprecedented legal questions for U.S. employers and employees who are older than 40 or who have a medical disability. Labor and employment attorneys around the country say they are receiving a flood of complaints and questions about layoffs, firings and recalls to the workplace that involve potential discrimination against older and disabled workers. Many cases involve an overlap of age and disability bias claims.

Both plaintiff and defense lawyers predict a large volume of federal and state lawsuits will emerge from the pandemic. They will be based on the federal Age Discrimination in Employment Act of 1967, which bars discrimination against workers age 40 and older; the Americans with Disabilities Act; the Families First Coronavirus Response Act, which mandated paid sick leave and family leave; the Fair Labor Standards Act; and state and local laws protecting older workers and those with disabilities…

Driven by the growing litigation risk, the U.S. Chamber of Commerce and other business groups have pressed Congress and state governments to enact broad restrictions on lawsuits against employers arising from the pandemic. Senate Majority Leader Mitch McConnell, R-Ky., wants liability protections included in any new economic relief package, but Democrats are strongly opposed…

While age discrimination in U.S. employment and hiring has long been pervasive, the pandemic has raised the stakes for both employers and employees. Companies are drastically cutting costs to survive the worst financial crisis in a century, while older and disabled workers face the prospect of permanent unemployment and financial hardship in their retirement years…

But Steven Ludwig, a partner at Fox Rothschild in Philadelphia, says layoffs of older, better-paid workers may be legally defensible during this tough economic period. “If you decide not to bring someone back because of high compensation, that’s not age discrimination,” he argued. Indeed, that’s one of the reasons it’s tough to challenge age discrimination in court under the Age Discrimination in Employment Act. Unlike in race and sex bias cases, plaintiffs must prove that age was a determinative factor in the employer’s decision and not just one motivating factor, under a 2009 U.S. Supreme Court interpretation of the ADEA.

A bill passed by House of Representatives in January would allow claimants to prevail if they simply demonstrate that age was a motivating factor. But Senate Republicans and the Trump administration oppose the Protecting Older Workers Against Discrimination Act, arguing that it would encourage a flood of frivolous cases…

Employers’ thinking about COVID-19 health risks to older employees could change if Congress passes broad liability protections for employers in case workers get sick. The Safe to Work Act proposal, written by Sen. John Cornyn, R-Texas, would give employers five years of legal protection if they make “reasonable efforts” to comply with government standards to protect workers from the coronavirus infection. But the fate of that proposal is uncertain.

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