Supreme Court Narrows Ability to Prove Age Discrimination

The U.S. Supreme Court, in a June 18, 2009 decision, has limited a claimant’s ability to prove an age discrimination case in court. The case, Gross v. FBL Financial Services, Inc. (08-441), decided by a 5-4 margin, decided a burden of proof issue that had never been completely resolved since the passage of the ADEA in 1967.

The question involved what happens in “mixed motive” cases, where there may have been some “legitimate” (i.e., non-discriminatory) factor, in addition to age, that played a part in the employer’s action. In Gross, for example, the plaintiff was demoted as part of a restructuring, but there was evidence age bias played a part in the decision.

In most cases involving other kinds of discrimination, the law allows the employee to hold the employer liable so long as he or she shows that an improper motive, such as racesex, or religion, was a factor in the decision-regardless of whether it was the most important factor. The law then would allow the employer to limit the employee’s damages (or, sometimes, avoid liability completely) if the employer could prove that, if it had acted without any discriminatory motive at all, it would have made the same decision anyway.

The Gross decision announced a different rule for federal age discrimination claims. A majority of the court held that the employee’s burden of proof includes showing what is known as “but-for” causation; in other words, that were it not for improper discrimination, the challenged employment decision would not have occurred. Under Gross, the burden of proof never shifts to the employer. To reach this result, the majority ignored decades of decisions holding that the ADEA should be construed similarly to Title VII, the principal federal law prohibiting discrimination based on race, sex, religion, color, and national origin.

Justice Thomas wrote the decision for the majority, composed of himself and Justices Roberts, C. J., and Scalia, Kennedy, and Alito, JJ. Separate dissents were written by Justices Stevens and Breyer; both of those dissents were joined by Justices Ginsburg and Souter.

Assuming it is properly interpreted by the lower courts, the Gross decision should impact principally the wording of jury instructions at trial, and should not affect the ability of employees to get their cases in front of juries. If you feel that you have been the victim of age discrimination in the workplace, you should contact an employment attorney.