In a 5-4 decision just issued, the U.S. Supreme Court made defending age discrimination claims under the federal Age Discrimination in Employment Act (“ADEA”) easier for employers. In Gross v. FBL Financial Services Inc., the Court held that in order for a plaintiff to prevail in an intentional ADEA age discrimination claim, the plaintiff must prove by a preponderance of the evidence that age was the “but for” cause of the challenged adverse employment action.
In reaching this conclusion, the Court rejected the application of the “mixed motives” framework, found in Title VII cases, to ADEA cases. Now, even if a plaintiff puts forth evidence that age was a factor in the adverse employment decision, the plaintiff cannot prevail unless he or she proves that the plaintiff’s age was the reason the employer took the adverse action. Further, the plaintiff retains the burden of persuasion to prove all disparate treatment claims and the employer does not have to show that it would have taken the action regardless of age.
As support for its decision, the Court noted that the mixed motive framework derived first from Title VII cases, and then from Title VII itself. The Court recognized that Congress amended Title VII to authorize discrimination claims in which an improper consideration was “a motivating factor” for an adverse employment decision. However, Congress did not include the “motivating factor” language in the ADEA when it was amended, and the Court could not ignore Congress’ decision to change one law and not the other.
The Court then examined the language of the ADEA and held that its text also did not authorize an alleged mixed-motives age discrimination claim. The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer…to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” See 29 U.S.C. §623(a)(1). According to the Court, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. In other words, age must be the “but for” cause of the challenged adverse employment action and not simply a motivating factor.
While it appears that the Court made it easier for employers to defend against ADEA age claims, one must be careful not to overlook state and local age discrimination laws which may still allow for a mixed motive jury instruction when it comes to employment litigation. As always, an employer’s best defense is to document the reason for adverse employment action, particularly noting performance problems and disciplinary action taken against specific employees. Such information will make it very difficult for a claimant to prove that age was the sole reason for adverse employment action.
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