Labor & Employment Law

SCOTUS - Age discrimination: Burden of proof never shifts

Before today, it was quite common for courts to use Title VII's burden-shifting analysis when dealing with age discrimination (ADEA) cases.

Put that into the past. The US Supreme Court has spoken, voting 5 to 4. Gross v. FBL Financial Services (US Supreme Court 06/18/2009) [Full text] [Official Syllabus] [Briefs]

Take a discharge case as an example. In Title VII cases, the usual proof methods are that the employee first shows that there is an inference of unlawful discrimination, and then the employer has the burden of producing evidence that the discharge was for a lawful reason. Sometimes, in what are called "mixed motives" cases, the burden of proof can shift to the employer. (My explanation is hopelessly short and incomplete, I know.)

However, in an ADEA case, the rules are different because the statute is worded differently. Title VII was amended in 1991 to say an employee could win by showing that an improper consideration was "a motivating factor," but that amendment did not extend to the ADEA. The Court held that the mixed-motives proof method simply does not apply in ADEA cases.

In an ADEA case, the employee must prove that age was the "but-for" cause of the employer's action. The burden does not shift to the employer. Thus, the burden of persuasion is going to be the same in mixed-motives cases as in any other ADEA disparate treatment case.

This ruling came as a surprise because this was not the issue that was briefed and argued. The formal issue before the Court was whether an employee must present "direct" evidence in order to get a mixed motives jury instruction. But answering that question was unnecessary because the Court held that "such a jury instruction is never proper in an ADEA case."

My view:

• This will be the biggest employment law case of 2009.

• Surprised that the Court decided an issue that was not briefed and argued. 

• Not surprised that five Justices gave such weight to Congress' failure in 1991 to re-write the ADEA while re-writing Title VII. 

• Certain that Congress will amend the ADEA so as to overcome the effect of the Gross case.

Full post as published by Ross' Employment Law Blog on June 18, 2009 (boomark / email).