Plaintiffs Face Heightened Burden In Age Discrimination Cases

The United States Supreme Court has made it significantly harder for plaintiffs alleging age discrimination in the workplace to prevail on such claims.  In June, the Court handed down a decision in Gross v. FBL Financial Servs., Inc., holding that the burden-shifting framework applicable to Title VII “mixed-motive” cases does not apply to claims under the Age Discrimination in Employment Act (the “ADEA”).  Rather, the Court held, a plaintiff at all times retains the burden of showing that the adverse action would not have been taken “but for” the plaintiff’s age.

In 2004, Jack Gross sued his employer, FBL Financial Group, Inc., alleging that he was demoted on the basis of his age in violation of the ADEA.  Based on the 1989 U.S. Supreme Court holding in Price Waterhouse v. Hopkins, the trial judge instructed the jury to return a verdict for the plaintiff if he proved by a preponderance of the evidence that his age was a “motivating factor” in the employer’s decision – in other words, that his age played some role in the decision to demote him.  The jury was further instructed that the burden then shifted to the employer to prove by a preponderance of the evidence that it would have demoted Gross regardless of his age.  The standard applied by the trial court was unquestionably the standard that would have been used if Gross had alleged discrimination based upon race or religion under Title VII, not only because of the Price Waterhouse decision but because Congress explicitly amended Title VII (but not the ADEA) after the Price Waterhouse decision to codify the availability of a “mixed-motive” claim.  Prior to Gross, many courts had applied this so-called “mixed-motive” analysis to ADEA disparate treatment cases as well.

When the case reached the U.S. Supreme Court, however, the Court flatly rejected the application of a “mixed-motive” analysis to claims under the ADEA.  The Court noted that Title VII was amended to explicitly permit claims in which an impermissible consideration was a “motivating factor” in an adverse employment action; however, the ADEA was not similarly amended.  Instead, the language of the ADEA still provides that a plaintiff can maintain a cause of action only if he or she was discriminated against “because of” age.  The ordinary meaning of this statutory language, according to the Court, is that a plaintiff must prove, by a preponderance of the evidence, that age was the reason for, or the “but for cause,” of the challenged adverse employment action.  This means that, even if a plaintiff in an ADEA action can establish that age was at least one motivating factor in a challenged adverse employment decision, unlike Title VII “mixed-motive” cases, the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of the plaintiff’s age; rather, the burden remains with the plaintiff to prove that the employer would not have taken the challenged action “but for” the plaintiff’s age. 

Gross has made it significantly more difficult for plaintiffs to prevail in federal age discrimination actions.  While Title VII plaintiffs need only prove that a protected characteristic was a motivating factor in an adverse employment action, ADEA plaintiffs must now prove that age was the determinative, “but for” reason for the employment decision. 

Although this Supreme Court ruling is largely considered a victory for employers, in the current legislative climate there is a significant chance that this ruling will be overturned by Congress.  Indeed, in the past year alone, Congress has enacted legislation overruling several recent Supreme Court decisions it found too restrictive, such as the Lilly Ledbetter Fair Pay Act, which affected the statute of limitations for pay claims; and the Americans with Disabilities Act Amendments, which broadened coverage under the ADA that the Supreme Court had previously stripped away.  It is entirely possible that the Gross decision will suffer the same fate.  In the meantime, however, employers who are forced to defend age discrimination claims have a significant advantage.