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
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
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.
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 anemployment attorney.