In June 2009, the United States Supreme Court issued its decision in Gross v. FBL Financial Services, Inc., holding that an employee bringing a claim under the Age Discrimination in Employment Act must show that age was the “but-for” cause of the challenged adverse action. Gross won at trial under an ADEA mixed-motive jury instruction, which allowed the jury to find his employer liable for age discrimination if Gross’s age was a “motivating factor” in the adverse action. The Supreme Court reversed Gross’s verdict, finding that “the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of age’ is that age was the [primary] ‘reason’ that the employer decided to act,” and not just one of many factors that played a role in the employer’s decision. The Gross holding simply means that a plaintiff must prove that her age was the determining factor of the adverse action, not the “sole cause” of the adverse action and not a “motivating factor” in the adverse action. Gross has also affected age discrimination claims brought under state statutes, but has not extended its reach into many distinct federal or state statutes.
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