Supreme Court Raises the Bar for Employees Claiming Age Discrimination
Lawyers and judges love to argue about burdens of proof, a subject which most others find arcane and hyper-technical. Sometimes, however, a court’s decision on burdens of proof has a large bearing on the outcome of litigation because the decision defines exactly what the plaintiff must prove to prevail at trial. The Supreme Court’s recent decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (June 18, 2009) is that kind of case.
The FBL case is a “mixed motive” “disparate treatment” case, meaning a discrimination case in which discriminatory intent must be proven and the company’s decision was a “mix” of impermissible and permissible motives. An example would be a case where the employer was biased against women but also believed that the woman who brought suit could not do her job. Was she fired because she was a woman or because she couldn’t do her job? In 1989, the Court held that in a mixed motive case under Title VII, the burden is on the plaintiff to show that discriminatory motivation was a substantial factor in the employer’s decision. Under this standard, the plaintiff does not have to prove that discriminatory animus was the sole or predominant motive. If the plaintiff met its burden, the employer then has to prove that it would have taken the same action regardless of the impermissible motive.
FBL, however, was an age discrimination case which arose not under Title VII but under the Age Discrimination in Employment Act (“ADEA”). The Court held that because the language of the two statutes was different, the plaintiff had a greater burden in an age discrimination case than in a case involving another kind of discrimination under Title VII. Specifically, the Court noted that the language of Title VII said that a plaintiff must prove only that the discriminatory motive was “a” motivating factor for the adverse employment practice. In contrast, ADEA says that it is unlawful for an employer to discriminate against an individual “because of such individual’s age” (emphasis added). According to the Court, those words mean that the plaintiff must prove that age was “the” reason for the adverse employment action, i.e., that the plaintiff’s age “had a determinative influence” on the employer’s decision. In effect this means that plaintiffs have different burdens depending on the type of discrimination they claim. Under Title VII, the plaintiff must show only that discriminatory animus was “a” factor in the employer’s decision and the burden then shifts to the employer to show that it would have made the same decision regardless of animus. But, when the plaintiff claims age discrimination, the burden never shifts to the employer and the plaintiff must prove that animus was “the” principal reason for the employer’s action.
The practical effect of this opinion is that will make it more difficult for plaintiffs to prevail in ADEA discrimination cases and easier for employers to defend. With Congress now controlled by Democrats, it should come as no surprise if Congress overrules the Supreme Court’s decision in this case, as it did earlier this year when it passed the “Lilly Ledbetter Act.”
