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Louis Jacobson
By Louis Jacobson February 10, 2012

Efforts to reverse Supreme Court ruling have fallen by wayside

During the 2008 presidential campaign, Barack Obama promised to "fight job discrimination for aging employees by strengthening the Age Discrimination in Employment Act and empowering the Equal Employment Opportunity Commission to prevent all forms of discrimination."

As we noted when we last took up this promise in late 2009, it has had an unusual course.

For four decades, the Age Discrimination in Employment Act of 1967 has barred employment discrimination for those at least 40 years old. It covers private employers with at at least 20 employees, as well as state and local governments.

But on June 18, 2009, the Supreme Court, in a sharply divided, 5-4 decision in Gross vs. FBL Financial Services Inc., made it much tougher for plaintiffs to demonstrate age discrimination, in part by shifting the burden of proof from the employer to the plaintiff.

In his promise, Obama's had initially intended to expand the act, which hadn't yet been curbed by the Supreme Court. Instead, after the decision came down, legislative efforts shifted to restoring the act to its original purview.

Three key lawmakers -- House Education and Labor Chairman George Miller, D-Calif.; Senate Judiciary Chairman Patrick Leahy, D-Vt.; and Senate Health, Education, Labor and Pensions Chairman Tom Harkin, D-Iowa -- announced on Oct. 6, 2009, that they were introducing bills in the Senate (S. 1756) and the House (H.R. 3721) to restore the law's provisions to the way they were before the high court's decision. The changes would be retroactive to just before the Supreme Court decision.

But both bills to counter the Supreme Court's decision went nowhere in the 2009-2010 session of Congress. In the current session of Congress, no bills have even been submitted to date. Even if such bills were offered, the combination of Republican control of the House and the likelihood that little legislation will pass in a presidential election year means that the chance of passage would be slim. We rate this a Promise Broken.

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Louis Jacobson
By Louis Jacobson December 15, 2009

Obama promise on age discrimination overtaken by Supreme Court ruling

Promise 412 presents an unusual scenario for the Obameter. Two bills to strengthen the Age Discrimination in Employment Act of 1967 are circulating in Congress, but both would merely restore the law to its strength before June 18, 2009, when a sharply divided Supreme Court limited the measure's usefulness to potential plaintiffs. Obama made his promise well before the Supreme Court rendered its ruling.

For more than four decades, the act has barred employment discrimination for those at least 40 years old. It covers private employers with at at least 20 employees, as well as state and local governments.

But the 5-4 Supreme Court decision in Gross vs. FBL Financial Services Inc. made it much tougher for plaintiffs to demonstrate age discrimination, in part by shifting the burden of proof from the employer to the plaintiff.

In response, three key lawmakers -- House Education and Labor Chairman George Miller, D-Calif.; Senate Judiciary Chairman Patrick Leahy, D-Vt.; and Senate Health, Education, Labor and Pensions Chairman Tom Harkin, D-Iowa -- announced on Oct. 6, 2009, that they were introducing bills in the Senate (S. 1756) and the House (H.R. 3721) to restore the law's provisions to the way they were before the high court's decision. The changes would be retroactive to just before the Supreme Court decision.

"This extremely high burden really undermines workers" ability to hold employers accountable,” Harkin told reporters at a news conference to announce the bills. He added, "What our bill does is restore the intent of Congress, an intent that I believe the Supreme Court negligently ignored."

Both bills have attracted more than 20 co-sponsors, but they are still awaiting committee action, so passage is not imminent.

Typically, the Obamater rules that when a presidential promise has been followed up by a pending bill, it counts as In the Works. This case is unusual because the new legislation in question would not "strengthen" the Age Discrimination in Employment Act, as Obama promised, but rather return it to what it was when Obama initially made his promise. Still, the bill is working its way through Congress, so we'll stick with a rating of In the Works.

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