• Supreme Court Decision Imposes Greater Burden on ADEA Plaintiffs
  • July 7, 2009
  • Law Firm: Obermayer Rebmann Maxwell & Hippel LLP - Philadelphia Office
  • On June 18, 2009, the United States Supreme Court increased the burden imposed on plaintiffs bringing claims of age discrimination under the Age Discrimination in Employment Act (“ADEA”).  Prior to Gross v. FBL Financial Services, Inc., a plaintiff could prove his disparate treatment age discrimination claim based on a showing that his age was “a motivating factor” in the adverse employment action taken by the employer; i.e., that the employee’s age was a fact considered in reaching the employment decision.  Following Gross, however, a plaintiff must show, by a preponderance of the evidence, that his age was the “but-for” cause of the adverse employment action; i.e., that the employee’s age determined the outcome of the employment decision.  

    The plaintiff in Gross, Jack Gross (“Gross”), was fifty-four (54) years old when defendant FBL Financial Services, Inc. (“FBL”) transferred him to a different position and reassigned many of his job duties to a female in her early forties.  Gross considered this transfer and reassignment of his job duties to be a demotion, and filed a claim of age discrimination against FBL under the ADEA.  At trial, Gross introduced evidence that FBL’s decision was based in part because of his age (what is called a “mixed-motive,” part based on age). 

    The trial court instructed the jury that it must return a verdict in favor of Gross if he proved that his age was “a motivating factor”, or played a part, in FBL’s decision.  The trial court also instructed the jury that it must return a verdict in favor of FBL if FBL proved that it would have made the same employment decision regardless of his age.  The jury returned a verdict in favor of Gross.

    The Eighth Circuit Court of Appeals (“Eighth Circuit”) reversed the trial court’s decision, holding that the trial court’s jury instructions were incorrect because they shifted the burden of proof and persuasion to FBL without any direct evidence that Gross’ age was a motivating or substantial factor in FBL’s decision. 

    The parties asked the Supreme Court to resolve the issue of whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction an ADEA case.  Writing for the five-justice majority, Justice Clarence Thomas stated that before it could make this determination, the Court must first decide whether the burden of persuasion ever shifts to the defendant in a mixed-motive, ADEA case. 

    The Court held that in order to establish a disparate treatment claim, an ADEA plaintiff must prove that his age was the “but-for” reason for the employer’s action; i.e., that is he would not have been demoted but for his age.  Thus, it is not enough for a plaintiff to prove that the employer considered the employee’s age, rather the plaintiff employee must prove that age drove the employer’s decision.  If the plaintiff cannot prove that his age was the reason for the employer’s action, then the employer need not show that it would have taken the same action regardless of the plaintiff’s age.    

    In light of Gross, employers will likely be more successful in defending ADEA claims on summary judgment and at trial.  However, employers must continue to make all employment decisions based on non-age based, legitimate, non-discriminatory reasons as the Gross decision only impacts ADEA claims, and may not apply to age claims brought under a state anti-discrimination law.   We expect that Congress will attempt to reverse the Court’s decision in Gross by amending the language of the ADEA to make it consistent with Title VII.