• No More Burden-Shifting in ADEA Disparate Treatment Cases
  • July 7, 2009 | Authors: Daniel B. Gilmore; Starlette J. Harris
  • Law Firms: Miller & Martin PLLC - Nashville Office ; Miller & Martin PLLC - Chattanooga Office
  • On June 18, 2009, in a close 5-4 decision, the United States Supreme Court precluded the application of the Title VII burden-shifting analysis in cases brought under the Age Discrimination in Employment Act (ADEA).  Instead, the Court held that a plaintiff bringing a disparate treatment claim under the ADEA must show "by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment decision."  The Court further held that, in ADEA claims, the burden of persuasion never shifts to the employer to show that it would have made the same decision regardless of age. 

    The plaintiff, Jack Gross, filed a claim of age discrimination in federal district court.  Gross alleged that his employer, FBL Financial Group, Inc. (FBL) demoted him because of his age, in violation of the ADEA.  At trial, the district court instructed the jury that it should find in favor of Gross if he proved by a preponderance of the evidence that age was a motivating factor in FBL's decision to demote him.  The Court further instructed the jury that it should find in favor of FBL if it proved that it would have demoted Gross regardless of his age.  The jury ruled in favor of Gross.  On appeal, the U.S. Court of Appeals for the Eighth Circuit reversed and remanded, holding that the district court improperly instructed the jury.  The Court reasoned that because Gross had not presented direct evidence of discrimination, it was improper to instruct the jury on the Title VII burden-shifting analysis which shifts the burden of persuasion to the employer to prove that it would have made the same decision regardless of age. 

    Plaintiff Must Prove That Age Was The "But For" Cause Of The Alleged Discriminatory Decision

    The Supreme Court agreed that the jury was improperly instructed, but vacated the 8th Circuit's decision, finding that the burden of persuasion does not shift to an employer in an ADEA disparate treatment case, regardless of whether direct evidence of discrimination is presented by the plaintiff.  The Court reasoned that the plain language of the ADEA requires a plaintiff to "prove that age was the "but for" cause of the employer's adverse decision."  The Court implied that if Congress intended for plaintiffs to establish ADEA claims by showing that age was simply a motivating factor, it would have amended the ADEA in the same way that it amended Title VII to provide for such claims.