Burden of Proof in Favor of Employers

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination in any aspect of employment against individuals 40 years of age or older “because of age”.  Under  the ADEA, employers may not fail or refuse to hire an individual based on age, nor can they discharge an employee based on age.  The ADEA also prohibits other adverse action against an employee or applicant based on age with regard to compensation, terms, conditions, privileges, opportunities, benefits and status of employment.  The provisions of the ADEA are clear. 

In recent years, however, confusion arose in the context of employees alleging “disparate treatment”, i.e., that the employee was treated differently on the basis of age.  In these cases, employees allege that age was a factor in the employer’s adverse employment decision.  The uncertainty surrounding the burden of proof in these cases was apparent from the courts’ mixed interpretations of the requirements of proof under the ADEA.  On June 18, 2009, the Supreme Court provided clarification in Gross v. FBL Financial Services, Inc..  In that case, the Supreme Court held that an employee litigating a disparate treatment claim under the ADEA must prove that age was the cause of the adverse action and not merely a “motivating factor”. 
         
Jack Gross filed suit in 2003 alleging that he was demoted by his employer, FBL, in violation of the ADEA.  The district court found that FBL failed to provide evidence that Gross’ demotion would have occurred regardless of age and Gross was awarded lost compensation damages because age was a “motivating factor” of the demotion.  FBL appealed, and the Eighth Circuit reversed the decision holding that Gross had failed to present sufficient evidence of direct discrimination based on age.  Under the Eighth Circuit’s ruling, FBL was not required to prove the demotion would have occurred regardless of Gross’ age. 
         
The Supreme Court held that employees must prove age was the “but-for” cause of an adverse employment action.  The current ruling means that employees must prove that “age” was the reason the employer decided to take adverse action.  The Supreme Court also held that an employer does not have to prove that the same action would have occurred regardless of age, even if an employee presents evidence that age was a “motivating factor.”  The Court reasoned that, despite amendments to Title VII, which authorize discrimination claims when an improper consideration was a “motivating factor” in an adverse employment action, Congress did not amend the ADEA.  Therefore, the ADEA requires an employee to prove that adverse action was because of age rather than the lesser standard of age being a “motivating factor.”
         
The Court’s ruling makes it easier for employers to defend against age discrimination claims because employees must now establish that their age was the cause of adverse employment action rather than a “motivating factor” in the decision.  While this ruling helps employers in mixed motive cases, the majority of ADEA cases do not involve mixed motive analysis; therefore, the scope of the case may be narrow. 
         
Further, the future of this employer-friendly ruling may be short-lived.  The case was a 5-4 split decision with two justices vigorously dissenting and criticizing the “unnecessary lawmaking” of the majority. 

The Supreme Court also opened the door for Congress to amend the ADEA by noting in its Opinion that Congress choose not to amend the ADEA as the basis for requiring employees to prove that age was the cause of the discriminatory decision.  In the past, Congress responded to similar rulings with “corrective” legislation.  For example, Congress responded to the Supreme Court’s Ledbetter decision by issuing the Lilly Ledbetter Fair Pay Restoration Act of 2009.  In this climate of change, Congress may propose legislation to incorporate the language within Title VII to the ADEA. 

With the growing number of age discrimination claims on the rise and an aging workforce,  this decision may help employers defending mixed-motive cases.  However, the strength and longevity of this ruling is short-lived.  For more information regarding employment discrimination claims, please contact the Labor and Employment Law Group.