Blog Age Discrimination Claims
June 29, 2009
Supreme Court Makes It Harder For An Employee To Win An Age
In a highly controversial opinion, the United States Supreme
Court decided a case which will make it harder for employees to
claim age discrimination. In the case of Gross v. FBL Financial
Services,1 the Court held in June 2009 that employees have to
prove that they were discriminated because of their age and that
the action they complain of would not have happened "but for" their
In the past, most courts have treated Age discrimination claims
under the Age Discrimination in Employment Act ("ADEA") like any
other discrimination claim under Title VII of the Civil Rights Act.
The employee had to prove that an unlawful, discriminatory factor
was a "motivating factor" in an adverse employment decision. In age
cases, this meant that the employee had to prove that age was a
motivating factor (but not the only factor) in an adverse
employment decision. Once the employee had demonstrated that age
was a motivating factor, the burden shifted to the employer to
prove that age was not the motivating factor and that the employer
had another reason for the action. However, under the
Gross case, the employee must now show the adverse
employment action occurred because of the employee's age
and the adverse employment action would not have happened "but-for"
the age of the employee.
This standard of proof is different than the standard that
applies to race, gender, or religious discrimination cases. Prior
to the Gross decision, age discrimination claims brought
under ADEA followed the same tests as the other discrimination
claims. However, in Gross, Justice Thomas explains that
ADEA is a separate statute and should not be analyzed the same as
Title VII claims. The decision involved the Court's efforts to
determine Congress' intent. The Court explained how its reasoning
in another case, involving Title VII discrimination, did not apply.
In Price Waterhouse, the Court had held that once the
employee demonstrates he or she is a member of a protected class
and that the discrimination was more likely than not motivated by
the characteristic of that class, then the burden to prove that the
same employment decision would have been made without the
discriminatory factor shifts to the employer.2 This standard still
applies for a claim brought under Title VII, such as discrimination
based on race, religion, or gender.
The Gross decision changed two major elements needed to
prove an age discrimination claim:
- The employee must now show that age was the "but-for" cause of
the adverse employment decision rather than a more simple
"motivating factor." This new standard is a sharp increase in the
requirements from prior precedent. If there are reasons other than
age for an employment action, then the employee's claim may
- Second, the burden to prove that age was the "but-for" cause no
longer shifts to the employer. The employee must prove that the he
or she suffered an adverse employment action because of his or her
age and the employer has no burden to prove anything.
Under Gross, the employer can now more easily defeat
ADEA claims and the employee has a much higher standard to prove an
ADEA claim. The employer no longer has to disprove that age was a
motivating factor. Most agree that it is now harder than ever for
an employee to prove and win an age discrimination case. Even if
age was one of the factors in the decision, an employee will not
win unless it can be proven that age was the only motivating factor
in an adverse employment decision.
1Gross v. FBL Financial Services, No.
08-441, 2009 WL 1685684 (U.S. Jun. 18, 2009).
2Price Waterhouse v. Hopkins, 490 U.S. 228
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