In Gross v. FBL Financial Services, Inc., No. 08-441 (S. Ct. 2009), the U.S. Supreme Court ruled in a 5 to 4 vote that, in order to prevail in a suit brought under the Age Discrimination in Employment Act (the “ADEA”), the employee must prove by a preponderance of the evidence that, “but-for” the employee’s age, the employer would not have taken an adverse employment action against the employee. The burden of persuasion (that is, the ultimate burden of proving the case) stays with the employee. It does not shift to the employer, to require the employer to show that it would have taken the action complained of regardless of the employee’s age, even when the employee has produced evidence that age was one motivating factor behind the action.
In so ruling, the Court noted the following:
— The Court will not apply the burden-shifting framework of Title VII to ADEA claims.
–The ADEA does not allow a “mixed-motive” discrimination claim.
The plaintiff in the case is Jack Gross, who began working for the defendant, FBL Financial Group, Inc. (“FBL”), in 1971. Gross had been the claims administration director at FBL. But in 2003, at age 54, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross’ job responsibilities to a newly created position–claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. Gross felt that the reassignment was a demotion because of the reallocation of his job responsibilities to Kneeskern. In 2004, Gross filed suit in District Court, alleging that his reassignment to claims project coordinator violated the ADEA, on the grounds that ADEA makes it unlawful for an employer to take adverse action against an employee on account of the employee’s age.
By requiring a “but for” showing by a preponderance of the evidence, rejecting mixed motive theories and not allowing the burden of persuasion to shift to the employer, the Supreme Court has made it difficult for an employee to succeed on an ADEA claim. Gross also calls into question the continued validity of Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) which dealt with shifting the burden of persuasion in a mixed motive Title VII case. Undermining this case will allow some interesting future developments in that area. The Gross case is here.