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.
For
more information, or if you have a question about
this or another employment matter, please call or email
us.
Larry
Besnoff, Esquire
Obermayer
Rebmann Maxwell & Hippel LLP
19th Floor
1617 JFK Boulevard
Philadelphia, PA 19103
Direct 215-665-3126
fax 267-675-4777
cell 215-694-3173
www.obermayer.com/AttorneyDetails.php?action=view&id=42 web: www.obermayer.com
