An employee has the burden of proof to establish that age was a "but for" cause of the adverse employment action.
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Age Discrimination Update
U.S. Supreme Court
Raises Employee Burden
In Age Bias Cases
By Christopher W. Olmsted
On June 18th, the U.S. Supreme Court issued a significant employment law decision that will make it more difficult for an employee to prove a case of intentional discrimination under the Age Discrimination in Employment Act (“ADEA”) as compared to the burden required under Title VII of the Civil Rights Act of 1964.
Title VII, of course, prohibits discrimination on account of color, religion, sex, or national origin, but not age discrimination. Age discrimination is prohibited in the ADEA, among other federal statutes.
A New Burden Of Proof
In a case titled Gross v. FBL Financial Services, the Court defined the employee’s burden of proof in disparate-treatment cases under the ADEA. An employee has the burden of proof to establish that age was a "but for" cause of the adverse employment action.
Huh?
In case you are not an employment law attorney, here is why that matters: lower courts have been ruling that when a promotion, termination, or other employment decision is made for legitimate business reasons, but nevertheless the employee’s age somehow played a role the decision, the employer can be held liable for age discrimination under the ADEA. Employment lawyers refer to the discrimination as a “motivating factor” in the adverse employment decision because mixed in with all of the good reasons for the decision was the bad reason having to do with age.
If an employee can make this mixed motive showing, then the employer, in order to defend itself from an ADEA age discrimination lawsuit, but show that it would have made the same employment decision regardless of the illegal factor.
A Supreme Court Tweak
The Supreme Court decided that “motivating factor” does not apply in ADEA cases. Unlike Title VII, which was expressly amended in 1991 to authorize mixed motive discrimination cases, the ADEA includes no such provision.
Therefore, an employee plaintiff alleging age discrimination must prove that the employer would not have taken the employment action at issue except for his age. It must be “the” reason for the decision, not “a” reason. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of the plaintiff's age, even when the plaintiff has produced some evidence that age was one motivating factor in the decision.
Broader Implications
The case is significant not only for ADEA cases, but also possibly ADA cases, because the ADA contains language similar to the ADEA, and does not include mixed motive language found in Title VII. Legal commentators also point out that under Title VII, retaliation claims may also follow this “but for” standard of proof. The section in Title VII prohibiting retaliation for opposing illegal practices does not refer to the “mixed motive” standard.
A Victory?
Call it a victory for employers, but only a small, perhaps hollow one. Most employee lawyers do not pursue the mixed motive discrimination case. Instead, they attempt to prove direct discrimination. For example, in termination case, the attorney will not typically concede that the employer had legitimate reasons as well as illegal reasons for termination. Rather, he will contend that all reasons were illegitimate false reasons given as cover for discrimination.
The victory could be short lived too. This year Congress has already negated one Supreme Court decision having to do with gender discrimination by enacting the Lily Ledbetter Fair Pay Act. Congress could amend the ADEA and negate the Gross decision.
California Law
California courts have not had much to say about the mixed motive theory of discrimination, and they have tended to cite to federal law. It remains to be seen how this Supreme Court case will affect California law.
More Legal Update articles.
Download entire July 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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