Employees alleging disparate treatment under the federal Age Discrimination in Employment Act (ADEA) must prove that age discrimination was the "but for" cause of an adverse employment action. The fact that age was a "motivating factor" in the employer's decision is not sufficient for a Plaintiff to prevail under the ADEA. Gross v. FBL Financial Services, Inc., No. 08-441 (June 18, 2009).
Case Summary
Jack Gross was a 54-year-old Claims Administration Director that was reassigned to the position of Claims Project Coordinator. The employer transferred many of his duties to a newly created manager position, which was given to a female employee in her early forties. Gross did not receive a pay reduction, but he did view the reassignment as a demotion because many of his job duties were transferred to the new manager position. Gross filed suit alleging that the reassignment was based at least in part on his age.
Gross won at the trial court level and was awarded $46,945 in lost compensation. The parties disputed whether the "mixed motive" jury instruction was proper. The Supreme Court eventually took the case to decide whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the ADEA. However, the Court never reached this particular question because five justices determined that the "mixed motive" analysis is never proper under the ADEA.
The Court recognized that the "motivating factor" analysis is used in discrimination cases under Title VII, but the Court pointed out that the statutory language in Title VII is materially different from the ADEA. The Court stated that Title VII was amended to allow a cause of action based on "mixed motive." The ADEA, on the other hand, contains no such language and, in fact, clearly states that it is unlawful to take an adverse employment action "because of" an employee's age. The Court concluded that the statutory language of the ADEA does not permit a "mixed motive" analysis. Therefore, to prevail in a disparate treatment case under the ADEA, a plaintiff must show that age was the determining factor in the employer's decision.
Conclusion
The Court's decision is good for employers because it makes it more difficult to prevail under the ADEA. Of course, the Court's narrowed standard might be short-lived inasmuch as the Court's decision is already being compared to Ledbetter v. Goodyear Tire. Senator Patrick Leahy has already publicly criticized the decision as "overreaching" and said the decision reminded him of "the Court's wrong-headed ruling in Ledbetter." It looks like the "Jack Gross Age Fairness Act" might be on the horizon.
Questions? Please contact an experienced Wessels Sherman attorney. Contact us.
