The Age Discrimination in Employment Act (“ADEA”) makes it unlawful for employers to discriminate against applicants and employees age 40 or older because of age. In a move that will have a dramatic effect on federal age discrimination litigation, the U.S. Supreme Court recently issued an opinion in Gross v. FBL Financial Services, Inc. that enhances the standard of proof that claimants must satisfy in ADEA actions, thus making it more difficult for claimants to prevail on federal age discrimination claims.
Mixed-Motive Discrimination Cases
Historically, the standard of proof in ADEA cases has generally mirrored the standards set out by the courts in cases under Title VII of the Civil Rights Act of 1964 (“Title VII”), the federal law that prohibits employment discrimination based on race, color, religion, sex, or national origin. Under both Title VII and the ADEA, employment actions challenged as discriminatory rarely arise from discriminatory factors alone. Often, an employer can cite legitimate factors such as poor performance, insufficient skills, or misconduct as the reasons behind an adverse employment decision. In such cases, called “mixed-motive cases,” Title VII expressly provides that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” (emphasis supplied). Thus, when a claimant demonstrates that an unlawful factor such as race or sex was involved to any significant degree in an adverse employment decision, the claimant has established a violation of Title VII. At this point, the burden shifts to the employer to prove that it would have made the same decision had it not taken the unlawful factor into account, and if the employer carries that heavy burden of proof, it can avoid monetary damages and certain other remedies, although the claimant would still be deemed to have prevailed on the discrimination claim. Based on similarities in statutory language and parallel policy considerations between Title VII and the ADEA, courts have generally applied these Title VII standards to ADEA cases. In its June 18, 2009 decision in Gross v. FBL Financial Services, Inc., however, the Supreme Court held that the Title VII approach to mixed-motive cases, with its shifting burden of proof, does not apply to claims under the ADEA.
The Supreme Court’s Ruling in Gross v. FBL Financial Services, Inc.
In Gross, the Supreme Court noted that unlike Title VII, the ADEA does not expressly address mixed-motive cases. Congress added the mixed-motive provisions to Title VII in 1991 but failed to make similar amendments to the ADEA, thus leading the Supreme Court to conclude that Congress did not intend for the two statutes to be interpreted similarly in this respect. Instead, the Court relied on the plain meaning of the ADEA prohibition of discrimination “because of age” to hold that a claimant asserting intentional discrimination under that law must prove that age was the “but-for” cause of the employer’s adverse decision. Thus, it is not enough under the ADEA, as it is under Title VII, for a claimant to prove that an unlawful factor was merely one of several “motivating” or “substantial” factors behind an adverse employment action. In effect, an ADEA claimant must prove that the challenged employment action would not have been taken in the absence of age considerations. The claimant must either establish that age was the sole reason for an adverse employment action or, if the employer considered legitimate factors as well, that considerations of age tipped the scales in favor of the adverse employment action. This is a much more difficult burden of proof for a claimant to carry. Significantly, the Supreme Court held that an employer defending against a claim of intentional age discrimination never has the burden of persuading a court or jury that it would have taken the same employment action regardless of the claimant’s age.
To prevail under the ADEA, claimants alleging intentional discrimination will now have to prove that the age consideration was the determinative factor, not just one of the factors, behind a challenged employment decision. The Supreme Court has thus made it more difficult for claimants to establish age discrimination claims against employers. It should be noted, however, that although the Gross decision imposes higher standards for age discrimination claimants under federal law, most states have their own age discrimination statutes, and claimants may be able to establish age discrimination claims under those statutes even when they cannot satisfy the burden of proof under the ADEA.
Before taking an adverse employment action against an older individual, employers should continue to consider all surrounding circumstances and comparable situations to determine whether the affected individual might be able to demonstrate facts from which a jury could determine that the individual’s age played a part in the employment action. Careful analysis of adverse employment actions before they are implemented can help minimize an employer’s exposure in employment discrimination lawsuits.