The United States Supreme Court, in a 5-to-4 decision, held that a plaintiff asserting a claim under the Age Discrimination in Employment Act (ADEA) must prove that the employer took adverse employment action against the plaintiff because of the plaintiff’s age. This case arose when the plaintiff, Jack Gross (Gross), filed suit under ADEA against his employer, FBL Financial Services, Inc. (FBL), for reassigning him to a new position and transferring many of his former job duties to a woman in her early 40’s. Gross, who was 54 years old when he sued FBL, argued that his employer took adverse action against him because of his age in violation of ADEA.
The trial court instructed the jury to enter a verdict for Gross if he had proved that FBL had demoted him and that his age was a motivating factor in FBL’s decision to demote him. On appeal, the Eighth Circuit reversed and remanded the case for a new trial because Gross had failed to present any direct evidence of discrimination, as it believed ADEA required.
The Supreme Court reached the same result with a different analysis. The Court held that the “mixed motive” analysis used in Title VII cases is not applicable to cases under ADEA. The Court based its decision on differences in the language of Title VII and ADEA, as well as Congress’s amendment of Title VII as part of the Civil Rights Act of 1991 and the absence of such an amendment to ADEA. The 1991 amendment explicitly authorizes Title VII discrimination claims for cases in which an improper consideration was “a motivating factor” for the adverse employment action whereas ADEA provides that “[i]t shall be unlawful for an employer … to … discriminate against any individual … because of such individual’s age.” See 42 U.S.C. §2000e–2(m) and 29 U.S.C. §623(a)(1) (emphasis added). The Court held that the ordinary meaning of the term “because of” under ADEA establishes that an employee suing under the ADEA must prove age was the “but for” cause of the employer’s adverse employment decision.
By deciding that the “mixed motive” analysis does not apply in ADEA cases, the court made it difficult for employees to prevail when age is only one of several reasons for an employer’s adverse action.