U.S. Supreme Court creates a sea of change in the law of age discrimination

In what has been called a “sea change” in the law of age discrimination, on June 18, 2009, a sharply divided U.S. Supreme Court held in a 5-4 decision that employees bringing disparate treatment claims under the Age Discrimination in Employment Act (ADEA) must prove that age was the “but-for” cause of the adverse employment action, not just a motivating factor.  The Supreme Court also held that the burden of persuasion does not shift to the employer in mixed-motive ADEA cases. Gross v. FBL Fin. Servs. Inc., __ U.S. __, Case No. 08-441 ( 6/18/09)

In this holding, the Supreme Court not only rejected the views of every federal appellate court, but it also established that age discrimination cases under the ADEA must be decided under standards that are different from those used in other discrimination cases brought under Title VII (which prohibits discrimination based on race, gender, religion and other prohibited factors).

The Court in Gross distinguished the ADEA from Title VII because, even though both statutes prohibit discrimination “because of” a protected factor, unlike the ADEA, Congress amended Title VII in 1991 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” (43 U.S.C. § 2000e-2(m) ).  Based on this amendment, the Supreme Court held that now age discrimination cases will have to be handled differently from discrimination cases brought under Title VII, the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA) and other federal discrimination laws.

It will be interesting to see if Congress will legislatively overrule the Supreme Court’s decision in Gross to conform the ADEA with Title VII.  This year, Congress amended the ADA to overturn several Supreme Court decisions that had limited its scope  and enacted the Ledbetter Act to supersede a Supreme Court holding that had limited the time-frame for filing pay discrimination claims.

Until Congress acts, in Title VII cases, where the plaintiff presents evidence that race or some other prohibited characteristic was a “motivating factor” in an employment decision (for example, by showing that a decision-maker made racially derogatory comments), then the burden shifts to the employer to show that the same decision would have been made even without the discriminatory motive.  However, now in age discrimination cases under the ADEA, plaintiffs will have to meet the higher burden of showing that “but for” the plaintiff’s age, the challenged employment decision would have been different.  Age discrimination plaintiffs will not be able to use the burden-shifting framework used in Title VII cases.

Age discrimination claims remain a significant concern for employers.  In 2008, age discrimination charges filed with the Equal Employment Opportunity Commission almost exceeded the number of race discrimination charges.  Even though the Gross decision is a “win” for employers, they will need to exercise the same caution and make sure they have sufficient supporting documentation when making employment decisions affecting older workers as they do with women and minorities.

Paul E. Starkman is the Chair of Arnstein & Lehr’s Labor & Employment Law Practice Group.

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