Thursday, July 16, 2009

Gross on the EEOC Radar

Last month I wrote a summary of Gross v. FBL Financial Services, Inc, the case that eliminated "mixed motive" burden-shifting in age discrimination suits. At the time, Ross Runkel, editor of Law Memo, wrote that it would be the "biggest employment law case of 2009."

Then a funny thing happened... it kinda fell off the radar. This is no doubt a combination of the public's limited interest in the technicalities of employment law and the media's love affair with the Ricci decision. Another blogger has likewise noted the limited media coverage of Gross.

While the case may be off the media's radar, it is most definitely not off the EEOC's radar! The EEOC held a meeting yesterday to highlight the "devastating impact" of age discrimination and "recent developments under the Age Discrimination in Employment Act (ADEA)." And by "recent developments" they mean "controversial" and "adverse" judicial decisions, including... you guessed it! Gross v. FBL.

The highlights of the EEOC meeting do not indicate any specific action taken but the EEOC promised "to take steps to provide additional regulatory and policy guidance." The EEOC further expressed that "legislative action was essential to ensure that the ADEA was a meaningful enforcement tool."

So while Gross may be off the media radar, I'm pretty sure the employment law powers that be have not forgotten. That is not to say, however, that Gross is their only concern. I think we'll see some new regulations, and at least some effort in Congress, to generally expand the power of the ADEA.

As a sidenote, the EEOC also issued guidance on Understanding Waivers of Discrimination Claims in Employee Severance Agreements. It specifically addresses the Older Workers Benefit Protection Act (OWBPA), an employee checklist for assessing severance agreements, and a sample waiver to help employers comply with OWBPA.