U.S. Supreme Court Narrows ADEA Claims

On June 18, 2009, the U.S. Supreme Court eased the burden on employers in age discrimination cases under the Federal Age Discrimination in Employment Act (“ADEA”).  In Gross v. FBL Financial Services, Inc., the Court considered whether the mixed-motive burden shifting framework applicable to Title VII cases also applies to cases brought pursuant to the ADEA.  Mixed-motive cases arise when an adverse employment action, such as a discharge, demotion or other discipline, is made based on both permissible (lawful) and impermissible (unlawful) considerations.  In such cases, if a plaintiff shows that discrimination was a “motivating” or “substantial factor” in the employer’s action, the burden of persuasion then shifts to the employer to show that it would have taken the same action regardless of the impermissible consideration (discrimination). 

The Court in Gross held that the Title VII mixed-motive burden shifting framework does not apply to ADEA cases because Title VII was specifically amended to authorize such claims while the ADEA was not.  The Court held that under the ADEA, the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motive cases as in any other ADEA disparate treatment action.  Thus, to state an ADEA disparate treatment claim, a plaintiff must prove by a preponderance of the evidence that age was the “but-for” cause of the challenged employer decision, even when the plaintiff presents evidence that age was one motivating factor in the decision.  If a plaintiff cannot prove that “but for” his/her age, the employer would have taken the same action, the employee’s age discrimination claim will fail.
Practice Pointer:  While this opinion provides relief to employers defending ADEA claims because the burden of persuasion will always rest with plaintiffs, employers must still be vigilant when effectuating personnel decisions and ensure all decisions are supported by written documentation of a non-discriminatory reason for the action.

For additional information on this topic, please contact Douglas S. Zucker at dsz@zuckerhatfield.com or Kathryn V. Hatfield at kvh@zuckerhatfield.com.