In June 2009, the Supreme Court issued its decision in Gross v. FBL Financial Services, Inc. , a case in which the Court evaluated a mixed-motive claim under the Age Discrimination in Employment Act (ADEA), which prohibits employment discrimination against individuals over the age of 40. In Gross , the plaintiff alleged that his employer's decision to reassign him was motivated at least in part by his age, while the employer claimed that its decision was based on other legitimate factors. The question at trial was what types of evidence the parties must present and who bears the burden of proof in such mixed-motive cases, which generally involve employment actions that are based on both permissible and impermissible reasons. Sidestepping the evidentiary question presented, the Court determined that an employer never bears the burden of persuasion because the traditional mixed-motive burden-shifting framework is not applicable to the ADEA. Finding instead that the ADEA does not authorize the type of mixed-motive claims that are available under a similar employment discrimination law, the Court, in a 5-4 ruling, held that an employee in a mixed-motive case bears the burden of establishing that "age was the 'but-for' cause of the challenged adverse employment action," meaning that the employee must show that age was the deciding factor, rather than just one of several motivating factors, behind the employer's action. This standard is likely to make it more difficult for plaintiffs to succeed in age discrimination cases in which age is only one of several factors behind the adverse employment decision.
This report discusses Gross v. FBL Financial Services, Inc., a recent case in which the Supreme Court evaluated a mixed-motive claim under the Age Discrimination in Employment Act (ADEA), which prohibits employment discrimination against individuals over the age of 40. In Gross, the plaintiff alleged that his employer's decision to reassign him was motivated at least in part by his age, while the employer claimed that its decision was based on other legitimate factors. The question at trial was what types of evidence the parties must present and who bears the burden of proof in such mixed-motive cases, which generally involve employment actions that are based on both permissible and impermissible reasons. Sidestepping the evidentiary question presented, the Court determined that an employer never bears the burden of persuasion because the traditional mixed-motive burden-shifting framework is not applicable to the ADEA. Instead, based on its conclusion that the ADEA does not authorize the type of mixed-motive claims that are available under a similar employment discrimination law, the Court held that an employee bears the burden of establishing that age is the decisive cause of the challenged employment action. This standard is likely to make it more difficult for plaintiffs to succeed in age discrimination cases in which age is only one of several factors behind the adverse employment decision. Currently, several bills that would supersede the Gross decision by amending the ADEA have been introduced in the 111th Congress, including H.R. 3721 and S. 1756.