In the Know ; Opinion
BOOK EXCERPT
Congress should act where the courts failed
We Need to Fight Age Bias By Jack Gross
Inever, never imagined when I was demoted seven years ago and
then filed an age discrim-
ination suit that I would
end up in the U.S. Supreme
Court, that I would testify
before five congressional
committees, or that my
name would become as-
sociated with the future of
age discrimination laws in
our country. I do believe,
however, that it happened
for a reason.
This all began in January
2003. When my employer,
Farm Bureau Financial
Group (FBL) in Iowa, merged with the Kansas Farm
Bureau, the company apparently wanted to purge
claims employees who were over age 50. All the Kan-
sas claims employees over 50 with a certain number
of years of employment were o;ered a buyout, which
most accepted. In Iowa, virtually every claims supervi-
sor over 50 was demoted.
Being 54, I was included in that sweep, despite 13
consecutive years of top performance reviews. The
company claimed this was not discrimination but
simply a reorganization. In 2005, a federal jury spent
a week hearing testimony and seeing the evidence.
The jurors agreed with me, and determined that age
was a motivating factor in my demotion. Since then,
the case has taken on a life of its own, including an
appeal to the 8th Circuit Court and a U.S. Supreme
Court hearing and decision.
Since the Age Discrimination in Employment Act
was passed in 1967, courts had ruled consistently that
the law protected individuals if their age was a factor
in any employment decision. But in my case, the Su-
preme Court unexpectedly changed course and ruled
that age had to be the exclusive reason for my de-
motion, even though that wasn’t the question before
them. They simply hijacked my case and used it as a
vehicle to water down the workplace discrimination
laws passed by Congress.
This new and much higher standard of proof is
clearly inconsistent with the intent of the ADEA
and four decades of precedent, and will a;ect mil-
lions of workers. A new trial was ordered and is
scheduled for November,
nearly eight years after my
demotion.
Discrimination
victims are usually
the most vulnerable
among us, those who
cannot fight back.
I was able to take a
stand against my
unjust treatment.
; Clutch
By Paul Sullivan
In 1978, Bernie Mar-
cus, 49, had just been fired
from a chain of hardware
stores. He had few options,
so he did what he had been
talking about doing for
years: He started his own
hardware chain. It helped
that he did not have anoth-
er choice. At every turn, he
would have to be “clutch”—
that is, excel under im-
mense pressure. His stores
would be different from
all other hardware stores—
they’d be warehouses
filled floor to ceiling with
everything needed to fix
or improve a home. A great
plan, except he didn’t have
enough money to fully
stock the first two stores.
One store looked more like
a going-out-of-business
sale than a grand open-
ing. But he came up with a
solution born as much of
his street smarts as of his
two decades
in retailing:
“We bought
boxes. We
bought empty
paint cans. We
had to give the
illusion that
we had merchandise.” Two
years after the first store
opened, the concept was
doing so well that Marcus
and his partners decided
to take the company—The
Home Depot—public.
Jack Gross was aided by AARP in the U.S. Supreme
Court’s precedent-setting age discrimination case.
—Excerpted from Clutch:
Why Some People Excel
Under Pressure and Oth-
ers Don’t. Published by
Portfolio. Copyright Paul
Sullivan, 2010.
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