Tougher Standards for Age Discrimination Complaints

July 12, 2009 by Beeson Tayer & Bodine

A recent U.S. Supreme Court decision will make it significantly harder for employees to win age discrimination suits.

In Gross v. FBL Financial Services, Inc. (2009), the Supreme Court held that employees who accuse employers of violating the Age Discrimination in Employment Act (ADEA) must prove that age was the sole reason for the adverse employment decision. As a result of this decision, an employer does not violate the ADEA if it has both a legitimate reason and a discriminatory reason for an employment action, unless the employee can prove but for the discriminatory reason the employee would not have suffered the adverse action.

Under Title VII, plaintiffs are required to show that discrimination was only one motivating factor in an adverse employment action. The burden then shifts to the employer to show that it would have taken the same action regardless of any discriminatory motive.

After Gross, an employer who has mixed motives, both legitimate and illegitimate reasons, for action against an employee has greater protection from liability under the ADEA.

Now when a plaintiff raises both ADEA and Title VII claims the employee must meet different burdens, complicatingdiscrimination lawsuits. Perhaps even more disdainful, Gross sends the message that age discrimination is a less serious offense than discrimination against race, sex, or national origin, classifications protected by Title VII.

Congress has acted in the past to amend, and thus “fix,” employment discrimination legislation gutted by a Supreme Court decision. (See the Lilly Ledbetter Fair Pay Act, below.) But unless and until that happens with the ADEA, employees will have a tough time winning mixed-motive ADEA cases.

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