The Supreme Court ruled today, June 18, 2009, in Gross v. FBL Financial Services of West Des Moines, Iowa, for the employer in an age discrimination case. This is an important ruling because the Supreme Court held that Title VII’s burden-shifting analysis for mixed motive cases is not applicable under the ADEA. A notion that most employment practictioners would probably expect to be addressed (and probably reversed) under the current Congress.
In Gross, Jack Gross, a vice president of the company lost the title of vice president in a reorganization in 2001. Two years later, some of his responsibilities were given to a colleague. The vice president sued his employer under the federal Age Discrimination in Employment Act and a jury agreed that his age was a motivating factor in his demotion. The vice president was awarded $46,945 in lost compensation. However, the Eight Circuit Court of Appeals overturned the verdict.
The Supreme Court upheld the appeals court ruling and found against the vice president in his mid-50s who says he was demoted because of his age. Justice Clarence Thomas, in drafting the opinion of the Court said a worker has to prove that age was the key factor in an employment decision, even if there is some evidence that age played a role. In some other discrimination lawsuits, the burden of proof shifts to the employer once a worker shows there is some reason to believe a decision was made for improper reasons.
The bottom line is 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 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.