Supreme Court Narrows Reach of ADEA
By Neal D. Mollen, Kenneth W. Gage and Derek Bottcher
In a surprisingly broad ruling beneficial to employers, the Supreme Court held last week that an age discrimination plaintiff bringing a disparate-treatment claim must prove that age was the but-for cause of the challenged employment action, rather than simply one of several motivating factors. Gross v. FBL Financial Services, Inc., 557 U.S. ___ (2009). Adopting this substantially greater causation threshold for cases under the Age Discrimination in Employment Act of 1967 (ADEA), the Court rejected the burden-shifting approach that is available to Title VII plaintiffs in mixed motive cases. It does not suffice, the Court held, for an age discrimination plaintiff simply to show that his or her age was one consideration among many in the challenged adverse employment action; the plaintiff must show that the adverse decision would not have been made had the employer not considered the plaintiffs age. Unlike in Title VII cases, according to the Supreme Court, the burden of persuasion never shifts to the employer.