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Burden Of Proof Raised On Employee Age Discrimination Claims

- July 2009

In a 5-4 decision, the U.S. Supreme Court made it more difficult for employees to prevail when asserting age discrimination as a reason for employment termination. (Gross v. FBL Financial Services, Inc., No. 08-441). The Court ruled that the Age Discrimination in Employment Act does not permit an employee to prove unlawful discrimination by offering evidence that his or her age was one of the factors that caused an employer to terminate employment or take other adverse employment action. What is required is evidence that the employee’s age was the decisive reason for the employer’s employment action.

The Court’s action is seen as all but eliminating the so-called “mixed-motive” age discrimination cases—where an employee’s age may be one of several factors considered by the employer when making an employment decision. According to the majority opinion, “a plaintiff must prove that age was a ‘but for’ cause of the employer’s adverse decision”.

The Court’s decision is expected to prompt legislation in Congress amending the ADEA to expressly allow mixed-motive cases and allow a plaintiff to show that age was a motivating factor for the employment decision in order to prevail. The opinion may be viewed at www.supremecourtus.gov/opinions/08pdf/08-441.pdf