On Thursday, June 18, 2009, in a sharply divided 5-4 ruling, the U.S. Supreme Court issued a significant age discrimination decision in the case of Gross v. FBL Financial Services, Inc. The decision clarifies and heightens the burden that a plaintiff must meet to succeed on an age bias disparate treatment case under the Age Discrimination in Employment Act (ADEA). Baker & Daniels attorneys Allison Fetter-Harrott and Amy Steketee co-authored an amicus curiae brief submitted on behalf of the National School Boards Association, arguing in support of the position the Court majority adopted. That brief is available for review by clicking here.

The Petitioner, Gross, filed suit against his former employer, FBL Financial Services, alleging that FBL demoted him because of his age in violation of the ADEA. The parties went to trial on the claim. After the close of evidence, the judge instructed the jury – over objections by the employer – that the jury was to find in favor of the employee if he had shown by a preponderance of the evidence that age was a "motivating factor" (i.e., played a part) in the demotion decision. The trial judge further instructed the jury to find for the employer if the employer had proven that it would still have demoted the employee regardless of his age. The Eighth Circuit Court of Appeals reversed the jury verdict in favor of the employee and remanded the case back to the trial court for a new trial, explaining that the instruction to the jury on the parties' burdens was a misstatement of the law.

The U.S. Supreme Court agreed to consider the case and issued its opinion on June 18, 2009, explaining that a plaintiff bringing an ADEA disparate treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The Supreme Court held that in an age discrimination case, the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. This decision provides some comfort and clarity to employers in defending age discrimination claims.

Prior to the June 18 decision, several federal courts permitted plaintiffs to prove their age bias claims using the so-called "mixed motive" approach provided in the statutory language of Title VII of the Civil Rights Act of 1964, which applies to claims of discrimination based on race, color, religion, sex, and national origin. Under the mixed motive approach, a plaintiff in an employment discrimination case must show that a protected characteristic, such as race, was a "motivating factor" in the challenged employment decision. When that happens, the burden shifts to the employer to show that it would have made the challenged decision regardless of the protected trait. Writing for the majority of the Court in the June 18 decision, Justice Clarence Thomas rejected the application of the "mixed motive" burden-shifting framework to age discrimination cases, explaining that the approach was limited to Title VII. Rather, Justice Thomas explained, a plaintiff in an age discrimination case must carry the burden of proving her or his case by the "but-for" standard.

While the Supreme Court's opinion in the FBL case provides the final judicial word on the burden a plaintiff carries in a disparate treatment case under the ADEA, some have speculated that the decision may prompt Congress to override the Court's holding through legislation. Congress has recently taken such action in response to Court decisions interpreting the Equal Pay Act and the Americans with Disabilities Act.