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Friday, June 19, 2009

Gross Miscarriage of Justice

In their zeal to strike yet another blow against civil rights enforcement, the five justices who threw Lily Ledbetter out of court and told Seattle and Louisville that they couldn’t voluntarily desegregate their schools reached beyond the question presented in Gross v. FBL Financial Services, Inc., ignored precedent and defied legislative intent to make it much harder for victims of age discrimination to win redress in court.

In 1989, the Court interpreted Title VII of the Civil Rights Act of 1964 to hold that an employer could be found to have engaged in unlawful discrimination based on sex even if the employer was motivated only partly by sex, unless the employer could prove that he would have made the same decision regardless of sex.

Today, in interpreting identical language in the Age Discrimination in Employment Act, the five member majority held that victims of age discrimination must prove that an employer would not have made the same decision absent consideration of age.

As a result, fewer victims of age discrimination will be made whole unless Congress again rises to the challenge, as it did when these same justices took on Lily Ledbetter.

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