Split Supreme Court Says Age Must Be 'Decisive' Factor in Job Bias Case

A sharply divided U.S. Supreme Court has ruled that a plaintiff who alleges job discrimination cannot win a case by showing that age was only one of several factors motivating an adverse employment decision.

In a 5-4 vote the high court made it more difficult for workers to prove their cases by requiring them to show that age was the decisive factor behind an adverse employment action.

"The decision essentially confirms a different standard of proof in age discrimination cases under the Age Discrimination in Employment Act," Eric Tate,

"However, because age discrimination claims are some of the most prevalent types of claims arising out of a layoff, especially in the form of class actions, this is a welcome decision for employers," Tate added.

The majority effectively eliminated the "mixed-motive" case under the ADEA, that is, cases where age is one of several factors influencing an employer's action.

"With a Democratic-led Congress it would not be surprising, indeed, many expect that just as with the Ledbetter Act, Congress will amend the ADEA to make the burden of proof consistent with Title VII," Tate said.

In the Ledbetter Act Congress later nullified the Supreme Court's ruling against the plaintiff in a gender discrimination case. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (U.S. 2007).

In this case the high court, in a majority ruling written by Justice Clarence Thomas, based its conclusion in large part on the ADEA's wording.

The law bars discrimination "because of" an individual's age, the majority said. The ordinary meaning of the "because of" requirement is that age was the reason an employer took a particular action, it added.

"To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the 'but for' cause of the employer's adverse action," the majority said.

According to the opinion, in 2001 plaintiff Jack Gross was the claims administration director at FBL Financial Services.

However, in 2003, when Gross was 54, the company reassigned him to a position that he considered a demotion. At that time it transferred most of his former job duties to a woman who was in her early forties and whom Gross previously supervised.

The company said the move was part of a corporate restructuring and that Gross' new job made better use of his skills.

Gross sued FBL in the U.S. District Court for the Southern District of Iowa, alleging his reassignment constituted age discrimination in violation of the ADEA.

The District Court instructed the jury that it must find for Gross if he proved by a preponderance of the evidence that FBL demoted him and that age was "a motivating factor" in the demotion.

FBL challenged the jury instructions in the 8th Circuit U.S. Court of Appeals, which reversed and remanded for a new trial. The panel held that because Gross had not presented direct evidence of age discrimination the District Court should not have given the mixed-motive instruction.

On appeal the Supreme Court vacated the appeals court's ruling.

A plaintiff in an age-bias case must prove his "but-for" cause by a preponderance of the evidence, but the burden of proof always remains with the plaintiff, the majority said.

"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" the majority said.

Justice John Paul Stevens wrote a dissent, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. The dissent also explored the statute's "because of age" language.

"The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee," Justice Stevens said.

"I disagree not only with the court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking," he added.

The high court originally granted review to decide if an age discrimination plaintiff had to present direct evidence of age bias in a mixed-motive case in order to shift the burden of persuasion to the employer.

"I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motive instruction," Justice Stevens said.

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