Supreme Court Sides With Employers on Burden of Proof in Age Discrimination Cases
June 30, 2009

By Francis R. Laws and Donna M. Glover

The Supreme Court has made it more difficult for employees to prove that they were discriminated against because of their age, and it will impact how employers defend claims under the Age Discrimination in Employment Act (“ADEA”) in court. However, the protections the Court gave employers in Gross v. FBL Financial Services (“Gross”), may be short lived if the Democratic-controlled Congress decides to take action. In Gross, the Court held that, in a case alleging disparate treatment under the ADEA, it is the employee's burden to prove that age was the “but for” factor in an alleged discriminatory action taken by an employer. The Court specifically held even if there is some evidence that age was a factor in the employer's action, the burden of proof never shifts to the employer to prove that it would have taken the same action regardless of age.

Background and Decision in Gross

Gross filed his lawsuit in 2004 claiming he was demoted because of his age (53). A federal trial court found in favor of Gross, and the employer appealed the decision to the Court of Appeals for the Eight Circuit arguing that the jury was inappropriately given a “mixed motive” jury instruction. In a “mixed motive” case, if an employee can show that his employer may have relied on a discriminatory reason and a non-discriminatory reason in its action against the employee, then, to avoid liability, the employer is required to prove that it would have taken the same action regardless the discriminatory reason. This “mixed-motive” framework is applicable in cases under Title VII of the Civil Rights Act of 1964 (“Title VII”). In fact, Congress amended Title VII in 1991 to allow for “mixed-motive” cases under Title VII, but did not amend the ADEA in the same fashion. The Court relied heavily on Congress' inaction in the Gross decision.

Because Congress amended Title VII, but not the ADEA, to allow for “mixed-motive” cases, the Court decided it would not legislate from the bench. Plainly, the Court determined that a “mixed-motive” jury instruction was never proper in an age discrimination case, and at all times the burden lies with the employee. The Court reasoned that the ADEA's language – “because of age” – means that age must be the “but for” reason, the specific reason, not just one reason among many.


What it Means For Employers

Although the decision may be short-lived, for now plaintiffs will find it more difficult to succeed on ADEA claims in court – which is good news for employers. However, the dissenting justices' reasoning in Gross may be a precursor of legislative action by Congress to overturn the Court's decision. The dissent noted that the words “because of” in the ADEA do not serve as “colloquial shorthand for ‘but-for' causation,” and that the relevant language is the same in the ADEA and Title VII. Therefore, the dissent reasoned that the “because of” language in the ADEA means that “age was a motivating factor in an employment decision.” In fact, earlier Supreme Court cases have suggested that ADEA law follows Title VII precedent. Signaling Congress' view of the Gross decision, on June 30, Rep. George Miller (D-CA) spoke out against the Court's June 18 decision in a press release warning that “The Supreme Court's ruling will make it even more difficult for workers to stand up for their basic rights in the workplace. A narrow majority of the Supreme Court has once again overturned decades of precedent and congressional intent and sided with powerful corporate interests on a workplace discrimination case,” and that “Congress may be forced to clarify the law's intent so we can prevent the damage this decision will have on workers' civil rights.” Thus, it appears that Congress may soon introduce legislation to amend the Age Discrimination in Employment Act, which would nullify the Gross decision and make it harder for employers to defend age discrimination cases.

i Francis R. Laws is a shareholder at the firm of Thomas & Libowitz, P.A. and chairs the firm's Labor and Employment practice. He can be reached at (443) 927-2119 or flaws@tandllaw.com.

ii Donna M. Glover is an associate in the firm's Labor and Employment practice. She can be reached at (443) 927-2149 or dglover@tandllaw.com.

iii This article is provided for informational purposes only and should not be construed as a legal opinion or legal advice. The reader should not rely on this article in making business, legal or other decisions on any matter without first consulting an attorney regarding any such decision or undertaking.

July 2, 2009