News

Brunini Employment and Labor News - August 2009

Supreme Court Confirms Age Discrimination Proof

In Gross v. FBL Financial Servs., Inc., the United Stated Supreme Court recently (June, 2009) clarified how age discrimination lawsuits must proceed. Notably, the decision, which has been hailed as pro-employer, explains the elements of proof needed to establish employment discrimination under the Age Discrimination in Employment Act (ADEA).

The relatively succinct decision explains that the age discrimination laws (“ADEA”) are different from Title VII (prohibiting discrimination on the basis of race, sex, religion etc.) in terms of how a plaintiff must prove illegal discrimination.  The decision is so significant that members of Congress have threatened legislative intervention.

The issue on appeal was a jury instruction. The trial court instructed the jury that it must find for Gross if he proved by a preponderance of the evidence that age was a motivating factor in his employer’s. The instruction defined  “motivating factor” as a fact that played a part or a role in the employer’s decision. The district court also instructed the jury that it must find for the employer if the jury determined that the employer would have demoted Gross regardless of his age.

The Supreme Court was asked to determine if the burden of persuasion in an age discrimination trial ever shifts to the employer. The Court confirmed that the burden never shifts, and the Court also found that the definition of “motivating factor” in an age discrimination case is not the same as it is in a Title VII discrimination case.  A plaintiff in an age case must establish by a preponderance of the evidence that age was a motivating factor and that but for the employer’s determination or consideration of age, the adverse employment decision would not have been made.  In other words, an age discrimination plaintiff must show that his or her age had a determinative influence on the outcome of the employer’s decision. It is not enough to find that the employer might have discussed or even considered an employee’s age in making an employment decision, but instead the employee must show that the employer’s decision was motivated by age, and without the age consideration, the decision would not have been made.

Unlike the Title VII standard of proof, the “motivating factor” evidentiary standard is restrictive and raises the bar for the proof needed and as a result serves to limit the number of age discrimination cases that will go to the jury.  Members of Congress have held hearings on the effect of the Gross, but as of the writing of this article, no Congressional bill legislation has been introduced to modify this ruling. 

View Archived Newsletters

« Display All News & Events