U.S. Supreme Court Rules Burden Remains
With Plaintiff In ADEA Mixed-Motive Case

In Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), the U.S. Supreme Court ruled that a plaintiff bringing a disparate treatment claim under the Age Discrimination in Employment Act (ADEA) must prove by a preponderance of the evidence that age was the “but-for” cause of the challenged adverse employment action.  The Court held that the burden 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 the decision.

Here, plaintiff alleged that his employer demoted him in violation of the ADEA, which makes it unlawful for an employer to take an adverse action against an employee “because of such individual’s age.”  The trial court instructed the jury to enter a verdict for plaintiff if he proved, by a preponderance of the evidence, that age was a “motivating factor” in the demotion decision.  The court also instructed the jury to return a verdict for defendant if it proved that it would have demoted plaintiff regardless of his age. The jury returned a verdict for plaintiff.

The Supreme Court reviewed whether a plaintiff must present direct evidence of discrimination to obtain a mixed motive instruction in a non-Title VII discrimination case.  In a Title VII mixed motive case, if the plaintiff shows that discrimination was a “motivating” or a “substantial” factor in the employer’s action, the burden of proof shifts to the employer to show that it would have taken the same action regardless of that impermissible consideration.  The Supreme Court found that the ADEA is not governed and should not be analyzed under the Title VII burden-shifting analysis.  Rather, the Court held that to establish a disparate treatment claim under the ADEA, the plaintiff must prove by a preponderance of the evidence, either direct or circumstantial, that age was the “but for” cause of the challenged employer decision.

The Court based its decision on the plain language of the ADEA, which differs from the language of Title VII.  The ADEA states it 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.”  As the Supreme Court noted, Congress chose to amend Title VII in 1991, and not the ADEA, to provide that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”  Thus, contrary to the burden-shifting analysis in Title VII cases, the Court held the burden of persuasion does not shift to the employer in ADEA cases, even if the plaintiff presents some evidence that age was a contributing factor to the challenged decision.  In other words, at all times the plaintiff bears the burden of proving that the challenged decision would not have been made absent his or her age.

© 2010 Kiesewetter Wise Kaplan Prather, PLC