Jack Gross blends into a crowd after a Capitol Hill hearing.

The short, unassuming 61-year-old Iowan reminds me of people I knew growing up in Indiana. He’s plain-spoken and friendly. He could have stepped out of the Norman Rockwell painting that he says his childhood in Mt. Ayer, Iowa, resembled.

Over the course of two days in Washington during the week of October 5, Gross starred in a news conference and congressional hearing, beginning a political journey that could make him this year’s Lilly Ledbetter.

Like Ledbetter, Gross is that the heart of a controversial Supreme Court ruling. Her case centered on pay discrimination; his revolves around age discrimination. Congress passed a bill to overturn her case and vows to do the same for Gross’ case.

Goodyear paid Ledbetter less for her factory supervisor position than it paid her male colleagues, Ledbetter alleged. But the Supreme Court ruled in 2007 that she had not filed suit before the statute of limitations expired.

Ledbetter asserted that she didn’t know that Goodyear was shortchanging her until decades after it made the first unfair pay decision. Earlier this year, Congress approved a bill that renewed the statute of limitations each time a worker receives a paycheck diminished by discrimination.

The bill was the first that President Barack Obama enacted. He knew Ledbetter well before she showed up for the bill-signing ceremony in the East Room of the White House, because she had campaigned with him.

From the time of the court’s decision in the spring of 2007 until Congress passed a bill bearing her name last January, Ledbetter grew into a political symbol for Democrats.

As the party battled the threat of a Republican filibuster in the Senate and a veto by then-President George W. Bush, Ledbetter became a political touchstone for women’s groups and for Obama, who was working to appeal to supporters of then-Sen. Hillary Rodham Clinton.

Gross also represents a powerful constituency: older Americans. One of Washington’s behemoth lobbying organizations—AARP—is putting its weight behind the Gross bill.

What is most compelling about Gross is his story. He suffered chronic ulcerated colitis in his youth and worked his way through college. Upon graduation, he took a job with the insurer Farm Bureau in Iowa, where he has been employed for about 30 years. He worked for several years in the late 1970s until 1987 for a seed company, then returned to Farm Bureau.

Gross was eventually promoted to the position of claims administration vice president. He consistently received strong evaluations and developed an insurance policy package that is an exclusive Farm Bureau product.

But when the company’s Iowa and Kansas operations merged earlier this decade, Gross asserts that all claims department employees in Iowa with a rank of supervisor or higher were forced to take demotions. Many of his tasks were reassigned to younger workers.

Gross filed suit in 2003. He has been battling the company ever since but continues to work there, which means that he has had to “endure retaliation for exercising a legal right,” he said in prepared testimony.

The written statement he submitted for the record at an October 7 hearing of the Senate Judiciary Committee was even more poignant than his brief remarks.

“Many of my friends are also farm or small-town kids who now feel like they are the forgotten minority,” Gross wrote. “Some have been aggressively looking for work for months, only to find doors close when they reveal the year they graduated. This fight has become more about them than it is for me.”

He is upset that his name is now associated with a case that has made it harder for plaintiffs to prevail in age discrimination suits.

 “That’s a heavy burden to place on one guy who simply tried to right one single act of age discrimination,” he said in an interview.

As is the situation with so many employment lawsuits, if Farm Bureau had used Midwestern common sense and treated a high performer fairly, regardless of his age, the Gross lawsuit and the resulting bill could have been avoided.

One of the first stories I covered for Workforce Management was the nomination of John Roberts Jr. to the Supreme Court. My piece focused on how the conservative Roberts was likely to be an ally of business on the nation’s highest judicial body.

Corporate hopes were raised even higher when Roberts was tapped to be chief justice after the death of William Rehnquist. Adding to the excitement was the fact that Samuel Alito Jr., a staunch conservative, would replace the moderate Sandra Day O’Connor.

But a funny thing happened on the way to judicial nirvana for the business community. The conservative Roberts court began to act conservatively—according to the traditional definition of the word. By and large, being conservative means being opposed to drastic change and avoiding activism.

What this means is that the Supreme Court under Roberts looks at a statute, its legislative history and past rulings when making decisions.

“They don’t legislate from the bench, but rather they follow precedent,” says Ted Meyer, a Jones Day partner in Houston. “This is typical of a fairly conservative court. They follow the law.”

The results are sometimes favorable for employers. In the most controversial of the Roberts court employment law rulings, the justices split 5-4 along ideological lines to enforce a strict 180-day statute of limitations on pay discrimination suits. Roberts and Alito joined on a decision based on a strict interpretation of the law, a conservative trait.

But the Roberts court has also issued rulings that make it easier for employees to pursue retaliation claims. In its latest decision, a 7-2 majority held that a Civil War-era law encompasses retaliation even though it does not explicitly address such claims.

Known as Section 1981, it was established following the abolition of slavery to ensure that African-Americans were treated fairly in contracts. The law has a much longer statute of limitations than Title VII, a more restrictive provision of the Civil Rights Act of 1964. Section 1981 also provides unlimited damages.

Title VII caps damages, requires plaintiffs to file their cases within months of a discriminatory act and establishes a dispute resolution procedure through the Equal Employment Opportunity Commission.

The decision “allows an employment law plaintiff to do an end run around Title VII,” says Joel Rice, who is of counsel to Fisher & Phillips in Chicago. “It’s beneficial to employees but not entirely surprising given the trend of the law in this area.”

Federal courts have been allowing the simultaneous filing of Title VII and Section 1981 cases for many years. So the court affirmed the practice and thus adhered to the principle of stare decisis, a conservative practice.

But in this case, it could wind up costing employers. “The longer limitations periods and uncapped damages available under Section 1981 represent a significant incentive for plaintiffs’ lawyers to use when crafting litigation strategies,” says Gerald L. Maatman Jr., a partner at Seyfarth Shaw in Chicago.

What these results mean is that business cannot count on the Roberts court to bail it out. Companies have to understand that striking back against a worker who alleges discrimination is even worse than the original mistreatment.

Using a little common sense is more likely to result in a favorable outcome in court—or avoiding court altogether—than counting on the appointment of conservative justices to the Supreme Court.

Employment litigation has boomed over the last decade or so, and those cases can unfold over years—especially if they go all the way to the Supreme Court.

But, as the Chinese proverb says, a journey of a thousand miles starts with a single step. Lawsuits against employers are often initiated by an alleged victim contacting the Equal Employment Opportunity Commission by phone.

That fundamental communication process is in a major transition as the EEOC continues to bring in-house all of the work that had been done during the last few years at a call center. This major undertaking—the agency received about 90,000 calls in the last month—has created controversy on the EEOC board. Here’s an article from Workforce.com regarding the situation that posted on December 17: “EEOC Hires Temporary Workers to Staff Phones During Transition.”

 On Tuesday, February 19, the EEOC approved the hiring of 61 permanent staff to help field calls. In mid-March, they will replace the 37 temporary employees who have been filling in since mid-December after the call center was shut down. The commission also extended for nearly 11 months the use of a voice recognition system that helps manage calls.

In addition, the EEOC set in motion what it calls a long-term solution, allowing its field office to select a telecommunications vendor for a five-year contract for an enhanced customer response system.

Citing federal procurement laws, the commission wouldn’t reveal the size of the contracts. But based on a slip by a commissioner at a December meeting, it’s probably safe to guess that the extension of the voice recognition system will cost somewhere in the neighborhood of $1 million.

Although the commission vote was unanimous, tension remains high among the commissioners over the call center transition. The short-term extension of the voice recognition contract and the bidding for a long-term vendor were rolled together into one vote to speed up the process. But the commission agreed to a complicated formula that would bring the vendor decision back to the commission if it exceeded cost estimates.

This may sound like internal politics at a federal bureaucracy, but there are important implications for discrimination victims and the companies that defend against their suits.

For one thing, the EEOC is a busy place. Its inventory of cases has increased from 39,000 in 2006 to 54,000 last year. And the phone keeps ringing off the hook. During the last month, 80 percent of 90,000 queries required the response of a live operator. “We don’t have enough people in our offices right now to answer calls,” Cynthia Pierre, director of EEOC field management programs, said after the commission meeting.

The 61 new hires will help, as will the strengthened capabilities of the voice recognition system. For instance, callers will now automatically be routed to the nearest of 15 EEOC regional offices. In the future, the system also will be able to direct them to the EEOC staffer who has expertise in the area of their concern

That kind of knowledge will be crucial because EEOC demand may spike further if employment discrimination bills supported by congressional Democratic majorities become law.

“There are a number of pieces of legislation pending, some complex,” said EEOC Chair Naomi Earp. “We could get a tremendous volume of calls, and they should be directed.”

So far, the EEOC has not received many complaints from people who have gotten misdirected—or lost—in the phone system. But even a few fumbles might create a problem.

“Anytime someone gets a busy signal, it’s a lost opportunity,” said Leslie Silverman, EEOC vice chair.

The intake process would be further undermined if an overworked EEOC staffer mishandles a complaint. The Supreme Court is considering a case in which FedEx argues that a discrimination suit should be dismissed because an EEOC charge wasn’t properly filed.

The shutdown of the outsourced EEOC call center won’t have a dramatic impact on the number of charges filed, according to Gerald Maatman Jr., a partner at Seyfarth Shaw in Chicago. But any internal EEOC mistake could allow a company to say that it didn’t get a fair chance to respond.

“You have created an additional defense for the employer,” Maatman said.

Don’t dismiss these bureaucratic details as just another Washington evil. At the EEOC, they could influence employment lawsuits—starting with a simple phone call.

When I was hired as the first Washington correspondent for Workforce Management in 2005, I had an idea that we lived in a litigious society. Now that I’ve worked a beat for two-and-a-half years that focuses largely on employment law, I’m absolutely certain.

From the Supreme Court down to trial proceedings, there is always a case in the legal pipeline that could have a profound effect on employers. Following an anemic jobs report on Friday, January 4, a rise in unemployment to 5 percent and an increase in the price of oil to $100 per barrel, it is possible that the number of cases will increase, particularly in the area of age discrimination.

If we are slipping into a recession, the economic setback coincides with fundamental changes in labor force demographics. As everyone knows (has been beaten over the head with, in fact), the huge baby boomer generation is reaching retirement age.

The trendy assumption is that employers will want to entice these folks to stay on the job past 65 so that they aren’t hammered with a talent shortage if most of the eligible boomers head to Florida. But others argue that many will elect to stay on the job to fulfill financial or psychological needs, so there won’t be a retirement crisis after all.

The leading edge of boomerdom may be courted by employers. But those who were born a little later—at some point during the Eisenhower administration—are only in their 50s and face a more harrowing situation.

They are in the prime years for companies fighting a recession to dump them and their hefty salaries and benefit packages. So, if the subprime housing fiasco and the credit crunch end up producing an economic contraction, look for age discrimination cases to multiply.

At an early December event hosted by AARP to commemorate the 40th anniversary of the Age Discrimination in Employment Act, Howard Eglit, a professor at the University of Chicago, noted that labor is the highest cost businesses face.

In rough economic times, that’s what takes the biggest hit. Young people trying to get a job and older workers trying to keep theirs “will be the two groups with the most problems,” he said.

Demographic trends exacerbate the situation for AARP members, who must be at least 50 to join the massive advocacy organization. “There are a lot of people out there who are potential ADEA plaintiffs,” Eglit said.

Another factor that could foster an increase in age discrimination suits is the fact that millions of Americans haven’t saved enough money to head to Florida or Arizona to live happily ever after. They could be desperate for jobs.
“The group that needs to work is going to get larger,” said James Brudney, a professor of law at Ohio State University.

But even as the population that might sue over age discrimination increases, their cases may languish because the federal government can’t help enough of them.

“There are many, many valid claims out there, but there aren’t the resources to represent those people,” Eglit said.

Even if the plaintiffs hire an attorney and get to court on their own, litigation is a long, difficult and potentially frustrating process.

“Juries have been enormously unsympathetic to age cases,” said Glen Nager, a partner at Jones Day.

An economic downturn will cause grief for most people. It may be even more hurtful for the burgeoning number between 55 and 65.

Rep. Barney Frank, D-Massachusetts, didn’t get everything he wanted in the historic sexual orientation discrimination bill approved by the House last week.

Originally, Frank and other supporters included provisions that would extend protections to transgender people in addition to homosexuals and bisexuals. But he couldn’t find enough backing in the Democratic caucus in the House to pass a broader bill.

So, he took what he could get now—momentum for legislation that could potentially stop discrimination from setting back the careers of millions of people.

Many homosexual organizations were livid with Frank for removing the transgender provisions. He asserted that these groups were letting the perfect be the enemy of the good.

They wanted it all right now, even though they had not gotten as far as a House vote on the bill in a generation. Washington rarely produces a bill that everyone can embrace, unless it has to do with renaming post offices.

Trying to reach agreement on legislation, or at least cobble together a bare majority (or 60 votes in the Senate), takes a lot of work.

Sometimes folks in the C-suite don’t understand that—perhaps because they operate in an environment where they don’t do the heavy lifting of consensus-building. A CEO’s word is law, and it is often endorsed by a handpicked board.

In Washington, there are 535 C-suites on Capitol Hill. The occupant of each one has to answer to 600,000 bosses every two years in the House or a whole state of bosses every six years in the Senate.

That can make for a messy situation in Washington that frustrates CEOs—and most of the rest of us too.

So, chief executives periodically come to town to exhort Congress to make progress on important issues. That was the case a couple weeks ago at the Council on Competitiveness annual meeting.

In a colloquy with other CEOs and experts, James Hagedorn, chairman and CEO of the Scotts Miracle-Gro Co., expressed exasperation about Washington’s inability to formulate effective energy policy.

“This city … is so full of crap,” he said.

Now, I don’t entirely disagree. Don’t get me started on what’s wrong with Washington.

But most of the time, I would make just the opposite point that Hagedorn does. Washington is not full of crap. In fact, the way it functions is often beautiful.

Look at what’s happening right now. The Democratic Congress and the Republican White House have to struggle together to reach compromises on everything from Iraq to children’s health care. Neither side ever gets exactly what it wants.

We may be a long way from solutions to major challenges like health care and energy. But the journey, even in fits and starts, will lead us to a good destination.

Our founders understood that one way to ensure Washington doesn’t run the nation off the road is to make it difficult to get anything done. In our check-and-balance government, it takes a lot of effort and patience to build coalitions and overcome opponents.

It’s a system that the rest of the world admires, even envies. Understandably, it’s not one that often gets an endorsement from CEOs. But they should appreciate its strengths before they come to town and cast aspersions.