Supreme Court Makes Age Discrimination Claims Harder To Prove

Volume 8, Issue 9
June 24, 2009

On June 18, 2009, the United States Supreme Court issued a ruling making it more difficult for plaintiffs claiming age discrimination under the Age Discrimination in Employment Act (ADEA) to prevail on such claims. This employer-friendly ruling resulted from a sharply divided Supreme Court in a 5-4 decision in Gross v. FBL Financial Services, Inc.

In the case, the plaintiff, Jack Gross, claimed that he was demoted because of his age, 54, when he was reassigned to a different position and some of the duties he previously held were given to a younger female employee. At trial on Mr. Gross's age discrimination claim, the court instructed the jury that it should find in Gross's favor if he proved that his age was a "motivating factor" in his demotion, i.e., that his age played a role in the decision. The trial court also told that jury that if his employer, FBL Financial Services, could prove that it would have taken the same action against Gross regardless of his age, the jury should find in the employer's favor. Ultimately, the jury found in Gross's favor, returning a verdict for $46,945 in lost compensation. The employer appealed to the Court of Appeals for the Eighth Circuit, which reversed the jury's verdict as a result of incorrect jury instructions.

Mr. Gross sought review by the U.S. Supreme Court, which was called upon to review the jury instructions which the trial court had given. In its review of the case, the Supreme Court drew an important distinction between the ADEA and Title VII of the Civil Rights Act of 1964. Under Title VII, the Court stated, a plaintiff may assert a claim of discrimination under a "mixed motives" theory - essentially that both permissible and impermissible factors were involved in the employment decision at issue. In such a mixed motives case, the burden of proof shifts from the employee to the employer, which must then prove that the same decision would have been made regardless of the impermissible factor.

The ADEA, however, does not allow for a mixed motives theory, according to the Supreme Court. Instead, the Court imposed a more stringent burden of proof on age discrimination plaintiffs. Specifically, the Court stated: "We hold that a plaintiff bringing a disparate treatment claim pursuant to the ADEA must prove...that age was the 'but for' cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision."

This ruling is a victory for all employers, in that individuals claiming age discrimination now must prove that their age was the "but for" reason for the disputed employment decision in order to prevail. Employers should be wary, however, that the Democratic-controlled U.S. Congress may see fit to amend the ADEA in response to this employer-friendly decision, as it has recently done with both the Americans with Disabilities Amendments Act and the Lily Ledbetter Fair Pay Act when Congress disagreed with the approach taken by the Supreme Court. In addition, the appointment of a new Supreme Court Justice by President Obama may tip the balance of the Supreme Court in favor of more pro-employee decisions in the future.

To view the case, see

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.