U.S. Supreme Court Takes Burden of Proof Off Employers in Age Cases

Employers sometimes find themselves faced with litigation despite their best efforts to maintain a discrimination-free work place. Employers often seek and obtain dismissal from groundless discrimination lawsuits. When steps taken to avoid trial are not successful, however, employers are required to explain their actions to a jury. A recent U.S. Supreme Court decision has changed the burden that has been placed on employers to explain their actions in claims of age discrimination.

For the past two decades, in cases where the employee presented evidence at trial that age was a "substantial factor" motivating the employer to take an adverse employment action (i.e., demotion, termination, etc.) against him or her, courts have instructed the jury to find for the employee unless the employer can show that it would have made the same decision even if its discriminatory motive had played no role in the employment decision at issue. In other words, the employer had to prove it would have still terminated, demoted, etc. the employee despite his or her age. Last week, a narrow majority of the Supreme Court up-ended this standard. In Gross v. FBL Financial Services, Inc., the Court concluded that under the Age Discrimination in Employment Act (ADEA), the burden of persuading the jury that the employer violated the statute should not be shared between the employee and the employer, but instead should be shouldered by the employee alone.

The plaintiff in Gross had worked for FBL Financial Services for 30 years when FBL removed him from his position as claims administration director and reassigned him to another position. Gross argued that FBL discriminated against him based on his age because it had given many of his former duties to a younger employee. He convinced the jury to award him damages. FBL appealed to the Court of Appeals for the Eighth Circuit, which found that Gross had presented insufficient evidence that FBL reassigned him because of his age. Gross then appealed to the Supreme Court, arguing that the circumstantial evidence he presented was sufficient to shift the burden of proof to FBL.

The Supreme Court took the case, but rather than review the nature and sufficiency of the evidence Gross had presented, it decided that shifting the burden of proof to FBL was incorrect. Under the ADEA, the Court held, it is solely the plaintiff's burden to prove to the jury not only the existence of age bias but also that the employer took action because of the employee's age. The Court explained further that the ADEA required Gross to prove that age discrimination was the "but for" cause of the adverse job action he suffered. That is, if it were not for Gross's age, FBL would not have demoted him.

As a result of the Gross decision, it will now be more difficult for an employee or former employee to prove that his or her employer violated the ADEA. It is no longer enough to present evidence that the employee's age was a substantial motivating factor in the employment decision; the employee now must prove that his or her age was the reason he or she was demoted, terminated, etc. If the jury believes that the employee's age motivated the employer, but that the employer also acted for other legitimate reasons, it must render a defense verdict to the employer.

Given the 5-4 split in the Court, the fact that this decision reverses all federal circuit courts to have considered the issue, and the current political mood in Washington, D.C., Congress may pass legislation to once again impose upon an employer defending an age discrimination case the burden of proving at the trial that it would have made the same employment decision even if it had not taken the employee's age into account. Until then, however, the Gross case means that employees claiming age discrimination will have more difficulty succeeding at trial than they did before.

Germaine Winnick Willett and Ice Miller LLP's other labor and employment attorneys assist employers faced with employment discrimination, wage and hour, contract, and other employment-related litigation.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.