Stites & Harbison, PLLC

On June 18, 2009, the U.S. Supreme Court issued an opinion in Gross v. FBL Financial Services, Inc., clarifying what an employee or applicant must prove to establish age discrimination under the federal Age Discrimination in Employment Act (ADEA). The Supreme Court held that the plaintiff must establish that age was the "but for" cause of the challenged adverse employment action. The Court further held that the burden of persuasion never shifts to the employer to show that it would have taken the same action regardless of age. In reaching this conclusion, the Supreme Court emphasized that, although Congress amended Title VII in 1991 to provide that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice," Congress did not pass any similar amendments to the ADEA. The Court made it clear that, unlike Title VII, the ADEA does not allow a plaintiff to establish discrimination by showing that age was simply a "motivating factor" of the employer. Rather, the employee or applicant must establish that he or she was discriminated against "because of" his or her age. Thus, even though the Supreme Court noted that there is "no heighted evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion," the Court's decision in Gross effectively places a higher burden on plaintiffs to establish age discrimination under the ADEA in "mixed motive" cases.

A complete copy of the opinion of the Supreme Court in Gross v. FBL Financial Services, Inc. can be found at the following link: http://www.supremecourtus.gov/opinions/08pdf/08-441.pdf.

Stephen Price is co-chair of the firm's Employment Law Service Group and an active member of the Business Litigation and Intellectual Property Service Groups. His practice focuses on commercial litigation, employment law and intellectual property litigation.