Burden of Proof in Age Discrimination cases after Gross v. FBL Financial Services

posted by Neil Klingshirn  |  Jul 23, 2009 09:24 AM [EST]  |  applies to Ohio

Last month's U.S. Supreme Court decision, Gross v. FBL Financial Services changed the burden of proof on age discrimination victims.  Previously, courts required age discrimination victims to prove that their age played a role in the {decision making] process and had a determinative influence on the outcome."  In Gross, however, the Supreme Court held that age discrimination victims must prove that the discharge was because of their age, meaning that but for their age, they would not have been discharged.  Whether this actually changed the plaintiff's burden of proof is a matter of debate.

The Holding of Gross


The issues in Gross came up to the U.S. Supreme Court as so-called "mixed motive" questions.  In a mixed motive case, where discrimination was one motivating factor but the employer can prove that it would have terminated the employee regardless of the employee's protected status, the employer is guilty of discrimination, but will avoid paying for most discrimination damages, as long as it proves that it had a legitimate motive as well. 

In federal age discrimination cases, however, the Gross court found that a mixed motive analysis does not not apply.  Instead, the court held that a plaintiff must prove a violation of the Age Discrimination in Employment Act  was "because of . . . age".  

Gross defined "because of . . . age" as follows:
  • “by reason of: on account of.” 1 Webster’s Third New International Dictionary 194 (1966);
  • “By reason of, on account of” (italics in original));
  • The Random House Dictionary of the English Language 132 (1966) (defining “because” to mean “by reason; on account”).
Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that 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. * * *  (“An act or omission is not regarded as a cause of an event if the particular event would have occurred without it”).

Proving Age Discrimination post Gross


The Gross Court stated that, as a result of the decision, "[t]here is no heightened evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion that age was the 'but-for' cause of their employer's adverse action, and we will imply none." This means that the Supreme Court did not intend to change, and did not change, the plaintiff's burden, which has been to prove that their age played a role in the termination decision and had a determinative influence on the outcome.

On the other hand, the jury question now appears to be whether the discharge or other adverse act would have occurred regardless of the plaintiff's age.  If the plaintiff, substantially younger, would not have been discharged under these conditions, the plaintiff wins. If the employer would have discharged the plaintiff, even if substantially younger, the plaintiff loses.

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Neil Klingshirn

Neil Klingshirn
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Independence, OH
Phone: 216-382-2500