While many reports show that employment discrimination claims are on the rise in the current economic climate, employers defending those claims got some good news recently from the United States Supreme Court. A recent decision makes it harder for an employee to win a case under the Age Discrimination in Employment Act (ADEA). Gross v. FBL Financial Services, Inc., No. 08-441 (June 18, 2009). Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
In the Gross case, the Court ruled that a plaintiff in an ADEA case must show that age was the “but for” cause of the employer’s adverse decision. This ruling means that ADEA cases are treated differently than discrimination cases under Title VII in terms of what evidence must be presented at trial in order for the employee to prevail. Under Title VII, an employer has the burden of persuasion as long as a plaintiff can show that discrimination motivated an employment decision. This burden shifting for so-called “mixed motive” cases is familiar in the Title VII context, but the Supreme Court concluded that the text of the ADEA does not authorize mixed motive age discrimination claims. As a result, an employer defending against an age discrimination claim does not have to show that it would have taken the action regardless of the employee’s age, even when there is some evidence that age was a motivating factor in the employer’s decision.
This good news for employers could prove short-lived, though. In the wake of the Court’s decision, some members of Congress have said that they will amend the ADEA’s text to permit mixed motive claims explicitly. Whether or not these amendments move forward, the bottom line for employers remains the same: good HR practices will help to avoid such claims in the first place and put your organization in a better position to defend claims, whatever the evidentiary standards may be at the time. Make sure adverse action against employees is based on business, not bias.