On June 18, 2009, the United States Supreme Court issued its opinion in Gross v. FBL Financial Serv., Inc., No. 08-441, giving a significant victory to employers facing claims under the Age Discrimination in Employment Act (“ADEA”).
Jack Gross, an employee of FBL Financial Services, Inc. (“FBL”), claimed that he was demoted because of his age, in violation of the ADEA. The jury ruled in Gross’s favor after being instructed by the judge that FBL was liable if age was “a motivating factor” in its demotion decision. In other words, the jury was told that if age played any part in that decision, FBL had violated the ADEA.
In an opinion by Justice Clarence Thomas, the Supreme Court held that the trial judge had misstated the standard for liability under the ADEA. Specifically, the Court held that the plaintiff in an ADEA suit must prove that age was the determinative, or “but-for,” cause of the adverse employment decision, not merely that it was “a motivating factor.” In other words, a plaintiff must demonstrate that, if it were not for his or her age, the adverse employment decision would not have been made.
Gross means that a plaintiff’s burden of proof under the ADEA is now higher than it is under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, sex, color, religion or national origin. In Title VII cases, a plaintiff must prove only that a protected characteristic was “a motivating factor” for the adverse employment decision, not that is was determinative.
While Gross provides a substantial win for employers, the victory may be short-lived. In the past, Congress has shown little hesitation in amending employment laws that it believes have been misinterpreted by the Supreme Court. Examples include the Civil Rights Act of 1991, which overruled a Supreme Court decision by amending Title VII to, among other things, substantially increase the difficulty of proving the employer’s affirmative defenses; and the Lilly Ledbetter Fair Pay Act of 2009, which overruled a Supreme Court opinion by amending several laws to provide greater protection for employees complaining of pay disparities. Given the current political composition of Congress, there is a substantial possibility that the House and Senate will overrule Gross by amending the ADEA to conform it to Title VII, so that it requires plaintiffs to prove only that age was a motivating factor in an employer’s decision. Until that happens, however, Gross will make it easier for employers to defend age discrimination claims.
A copy of the Gross opinion can be found on Cornell University Law School’s Legal Information Institute website.