Font Size: 
Supreme Court Increases Burden on Age Bias Plaintiffs
The National Law Journal
June 19, 2009
A sharply divided U.S. Supreme Court on Thursday made it more difficult for employees to prove age discrimination charges against their employers.
The high court, in a 5-4 decision by Justice Clarence Thomas, held that the text of the Age Discrimination in Employment Act does not allow a worker to establish discrimination by showing that age was one motivating factor for the employer's action. Instead, the majority held, employees must show that age was the decisive factor behind the employer's adverse job action.
The practical effect of Thursday's decision (pdf), said lawyers for employees and employers, is to eliminate so-called mixed-motives cases under the ADEA -- cases in which age was one of several factors motivating the employer's action.
The decision "reads mixed-motives cases out of the age act," said Lawrence Lorber, a partner in the Washington office of Proskauer Rose. "It's a good decision for employers unless Congress opts to deal with it."
The ADEA's text bars discrimination "because of" the individual's age, Thomas wrote. The ordinary meaning of the "because of" requirement is that age was the reason the employer decided to act.
"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 decision," wrote Thomas, who was joined by Chief Justice John Roberts Jr. and justices Antonin Scalia, Anthony Kennedy and Samuel Alito Jr.
The employee must prove this "but-for" cause by a preponderance of the evidence, which may be direct or circumstantial, according to the majority. And the burden of persuasion always stays with the plaintiff.
The high court initially granted review in Gross v. FBL Financial Services to decide whether an age bias plaintiff had to present direct evidence of age discrimination in a mixed-motives case in order to shift the burden of persuasion to the employer to show that it would have taken the same action regardless of the illegal age factor.
Proskauer's Lorber, who represents employers, called the decision "surprising" because Title VII of the Civil Rights Act of 1964 permits mixed-motive cases, and the high court, in the past, has held all other seminal Title VII precedents applied to the ADEA.
"For the first time the Court seems to be proposing a fairly big crater between Title VII and the ADEA," he said.
The majority opinion triggered a sharp dissent from Justice John Paul Stevens, who noted that the "but-for" standard adopted by the majority had been rejected by the Court in Price Waterhouse v. Hopkins in 1989 and by Congress when it amended Title VII in 1991.
"Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII," Stevens wrote. "I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking."
Thomas Osborne, an attorney with the AARP Foundation, an amicus party in the case, said the ruling was "very disappointing." He added, "The practical impact is to drive a wedge between discrimination in Title VII and age discrimination claims. It reinforces the notion that age discrimination is somehow different and not as bad as other types of discrimination. That may be the greatest harm of a decision like this."
Although the decision is a "big win" for employers, James Burns, a partner in Reed Smith's Chicago office, said, "It's safe to assume a bill will soon be introduced in Congress to overturn this decision, by amending the ADEA so that it parallels Title VII in requiring a plaintiff to show only that age was ‘a motivating factor.'"
Reaction on Capitol Hill was swift. Senate Judiciary Chairman Patrick Leahy, D-Vt., said, "In the Supreme Court's decision today, five justices acted to disregard precedent and ignore the plain reading and common understanding of the statute that Congress passed to protect Americans from discrimination based on their age. It is even more troubling that these five justices decided to go further than the question presented to the Court."
