posted on Monday, June 22, 2009 10:02 PM
by
David Greenspan
New Supreme Court Case Takes an Arrow Out of an ADEA Plaintff's Quiver
The Supreme Court case, Gross v. FBL Financial Services, Inc., is a pro-employer case that makes it more difficult for workers to establish age discrimination. In a sharply divided 5-4 ruling, the majority (by way of an opinion from Justice Thomas) held that an employee asserting federal age discrimination bears the responsibility to prove that age was the main factor that led to the alleged adverse employment action. In Gross, the case centered on whether employees in non-Title VII cases must present direct evidence of discrimination to secure a "mixed motive" jury instruction, which would then shift the burden of proof to the employer (note - this opinion does not impact an employee's ability to prove age discrimination by direct or circumstantial evidence). Instead of directly responding to that issue, the majority stated that "[t]his court has never held that this burden-shifting framework applies to ADEA claims[,] and we decline to do so now." Holding that a plaintiff's burden of proof under ADEA is tougher than it is under Title VII, the majority opinion noted that "the ADEA's text does not authorize an alleged mixed-motives age discrimination claim. "To establish a disparate treatment claim under [the ADEA text], a plaintiff must prove that age was the 'but for' cause of the employer's adverse decision."
A few initial comments on the case:
(1) The opinion does not directly impact an employee's ability to prove age discrimination by direct or circumstantial evidence. Thus, while a burden-shifting jury instruction in ADEA mixed motive cases are "out for now" (see comment below), an age claims will still turn on the evidence (both direct and circumstantial) developed in the record. I do not see this case as having a material impact on the number of age claim brought by jilted employees, however I do think the opinion will impact where the claims are brought, which brings me to Point No. 2.
(2) Many states have their own FEP statutes that will deviate from this precedent. Although states vary, most states "bundle" protected classes into one FEP statute and the mixed motive standard and burdens are established under state law precedent. Indeed, Gross is, at its core, a statutory interpretation case. So I don't see its impact trickling down to age claims under state law.
(3) The majority opinion makes so much of the 1991 Amendment to Title VII (which is the prime difference cited as to the text of Title VII and the ADEA) that I would not be a bit surprised to see an amendment to the ADEA in the next Congressional session much like we saw with respect to the ADA last year.
We will keep an eye on this case as it is cited and analyzed.