I am in Campaign, Illinois speaking to Illinois judges who just received news of this ruling yesterday.
The law was challenged by Judge William Maddux, head of the law division of the Cook County Circuit Court, and five voters. Maddux will be 75 next year when his term runs out.
Freeman noted that the law treated individuals in grossly unfair ways. For example, while a 75-year-old judge would have to retire, someone who had not been a judge could run for a term. “This entirely undermines the notion of a mandatory retirement based on age,” he wrote.
The four-judge majority further noted that the Illinois Constitution does not mention age in setting the criteria for judges and thus the Constitution might have to be amended to achieve such a result.
Two judges dissented, including Justice Lloyd Karmeier who wrote a dissenting opinion.
Justice Charles Freeman is 75 will benefit from the decision and may now run for retention in the 2012 election. That fact creates an bit of an appearance of a conflict of interest. Yet, eliminating judges “of a certain age” may create logistical problems and all judges will technically benefit from the elimination of an age ceiling. On the U.S. Supreme Court such age-based elimination would leave the matter largely in the hands of Chief Justice Roberts and Justice Sam Alito.
Back in Washington, jurists were making it harder for citizens to sue for age discrimination. In Gross v. FBL Financial Services, in a 5-4 decision, Justice Clarence Thomas wrote a majority opinion that set a higher standard for age discrimination.
The Court ruled that workers over 40 suing under the Age Discrimination in Employment Act (ADEA) cannot use a prior balancing test and must also show that not only did age play a role in an adverse employment decision, but also that it had a “determinative influence.” Thomas wrote:”We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.”
Thomas relies on a rule of statutory construction the amendment of another law, Title VII, but not the same amendment of ADEA shows an intent with regard to the latter law:
We cannot ignore Congress’ decision to amend Title
VII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. See EEOC v. Arabian American Oil Co., 499
U. S. 244, 256 (1991). Furthermore, as the Court has explained, “negative implications raised by disparate provisions are strongest” when the provisions were “considered simultaneously when the language raising the
implication was inserted.” Lindh v. Murphy, 521 U. S. 320, 330 (1997). As a result, the Court’s interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace and Price Waterhouse.
Notably, the Court ruled on a specific question that was not raised in the original appeal. Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito joined Thomas. Justices Stephen Breyer, David Souter and Ruth Bader Ginsburg also dissented.
Justice John Paul Stevens dissented, calling the opinion “an unabashed display of judicial lawmaking.” That is as strong language as it gets in such decisions and comes quite close to calling the majority opinion judicial activism. He addes “Unfortunately, the majority’s inattention to prudential
Court practices is matched by its utter disregard of our
precedent and Congress’ intent.” Justice Breyer also wrote a dissenting opinion joined by Justices Souter and Ginsberg.
The case stems from a claim filed by Jack Gross, a longtime employee of insurance company FBL Financial Services Inc., in Des Moines, Iowa. When the company reorganized, it demoted Gross and replaced him with a less qualified and younger worker.
This is the opinion, Gross 08-441
For the full story out of Illinois, click here.