Yesterday, in a 5 to 4 ruling, the U.S. Supreme Court dealt a blow to plaintiffs who bring so-called “mixed-motive” age discrimination cases. In Gross v. FBL Financial Services, Inc., the Court held that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The Court further held that the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Gross establishes a tougher burden of proof for age discrimination cases than for other types of discrimination cases brought under Title VII. In Title VII cases, once the plaintiff shows that discrimination was a “motivating” or “substantial” factor in the employer’s action, even if it was not the only factor, the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of the impermissible consideration. In Gross, the Court specifically rejected this burden shifting approach, and held that in ADEA cases the burden remains with plaintiff to prove not only that his or her age played some role in the adverse employment action, but was the “but-for” factor.

Click Here to read the full text of Gross.

Keesal, Young & Logan Employment Group