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Part II: Age discrimination could become tougher to prove

In a previous Milwaukee employment law blog post, we wrote about Babb v Wilkie, an age discrimination case heard in January by the U.S. Supreme Court. The lawsuit was filed by a Veterans Affairs pharmacist (Babb) who alleged she was denied an opportunity to advance her career on the basis of age and gender discrimination.

The Trump administration argued to the Supreme Court that the "but for" standard should be applied in discrimination cases. That standard would require lower courts to recognize that workplace discrimination existed only if an employment decision was made based on one motivating factor.

In other words, if a worker alleged that he'd been fired because of race, the court could only determine that discrimination existed if race was the deciding motivating factor, not one of several motivations involved in the decision to fire him.

If the "but for" standard is adopted, it would make it more difficult to demonstrate that workers had been subjected to unlawful discrimination.

A recent article on the Babb case pointed out that it's already difficult to prove discrimination on the basis of age, gender, race, pregnancy, religion, etc., because employers typically try to obscure discriminatory behavior by claiming that the worker in question had violated company policy or was simply fired because the position has been eliminated in a business restructuring or downsizing.

The article points out that in 80 percent of all discrimination claims filed with the EEOC, the employee alleges that there were multiple forms of discrimination involved in the disputed employment decision.

It is up to the Supreme Court to decide on the standard to be applied in discrimination cases, but there is no doubt that if the court accepts the Trump administration's argument, it will become more difficult to prove unlawful discrimination.

That possibility will make it more important than ever to have on your side an employment law attorney experienced in courtrooms and in negotiations. Contact the Milwaukee employment law firm of Alan C. Olson and Associates to schedule a safe consultation by phone or video.

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