The House of Representatives passed a bill that would change the burden of proof in age discrimination cases brought against private employers under federal law. Since a 2009 U.S. Supreme Court ruling, to prevail in an Age Discrimination in Employment Act case against a non-government employer, the plaintiff has had to prove that “but for” age discrimination, the adverse employment action would not have happened. Title VII cases, asserting federal rights to be free from race, sex, color, and national origin discrimination, are easier for plaintiffs, requiring only proof that the prohibited characteristic was a motivating factor in the decision. This difference may not seem like much, but lawyers will tell you: it’s enormous.
Back to Chief Justice Roberts. “Ok, Boomer” is a currently popular putdown of a (usually digitally challenged) older person by a millennial or younger individual. The case involves which standard of proof applies to federal government employees suing for age discrimination. In questioning whether the lower “made-a-difference” standard would unfairly interfere with workplace speech, the Chief Justice hypothesized that one “Ok, Boomer” utterance by an interviewer younger than the candidate in a lengthy selection process could be enough. The employee’s lawyer answered that a stray remark not shown to have made a difference in the decision would not establish a winning case for the plaintiff.
Our own principal, Gary Phelan, used a similar “Ok, Boomer” hypothetical in an exam he gave his students at Quinnipiac U. School of Law last month.
At Mitchell & Sheahan, we watch news like this so we can be ready to advise our clients on the realistic risks and benefits of workplace legal issues.