Age Discrimination: U.S. Supreme Court Raises Evidentiary Bar
Billie Burke:
“Age is something that doesn’t matter, unless you are a cheese.”
The U.S. Supreme Court issued a decision in Gross v. FBL Financial (2009) 129 S.Ct.2343; 174 L.Ed.2d 119 which changes the burden of proof in age discrimination cases. Courts previously used Title VII’s burden of proof-shifting analysis when analyzing age discrimination (ADEA) cases. Title VII cases are “mixed motive” cases wherein the employee presents evidence that an employer’s adverse decision was motivated, in part, by unlawful discrimination even if the employer was motivated by other, lawful reasons. In cases based on alleged Title VII violations, an employee presented direct evidence that the employer’s adverse employment decision was partly motivated by unlawful employment discrimination (race, sex, religion, national origin), then a shift of the burden of persuasion occurred wherein the employer has the burden of proof, not the employee, that the employer would have made the same adverse decision absent the alleged unlawful discrimination.
Gross utilized the burden of proof shifting approach as had been previously used in mixed motive cases, but the U.S. Supreme Court declared that said method was improper for ADEA cases, because the ADEA statute was worded differently than Title VII. In 1991, Title VII was amended to specify that an employee could prevail in an employment discrimination case by showing that an improper discriminatory purpose was a “motivating factor” in the employer’s decision to demote or terminate. The Court determined that the language of the amendment did not extend to the ADEA statute, and the “mixed motive” methodology of proof did not apply to ADEA cases.
The present criteria for proof in an ADEA case is that an employee must prove that age was the “but for” cause of the employer’s action or decision. The plaintiff has the burden of proving by a preponderance of the evidence that age was the determining factor in the employer’s employment decision.
The Court’s decision in Gross caught legal pundits by surprise because the issue was not briefed nor argued before the Court. The issue before the Court was whether or not an employee must present direct evidence in order to obtain a mixed motives jury instruction, but the Court declared that such an instruction was not appropriate in an ADEA case.
Many in the legal community regard the Gross decision to be the most significant employment law case in 2009, because it makes it more difficult for an employee to prevail on an age discrimination claim because of the comparatively high “but for” causation standard.
Gross is considered to be a major victory for employers. However, the decision may galvanize Congress to formulate legislation which is directly responsive to the Gross decision and an aging population where individuals are forced to work longer because of the uncertainty of social security.
