Supreme Court Changes the Rules for Age Discrimination Cases, Holding Plaintiffs to a Heightened Proof Standard
In a highly favorable decision for employers, the United States Supreme Court, in the case of Gross v. FBL Financial Services, Inc., 557 U.S. ___ (2009), recently held that plaintiffs in Age Discrimination in Employment Act ("ADEA") cases alleging disparate treatment always have the burden of proving that they were terminated or subject to another adverse employment action "but for" their ages. In so doing, the Court refused to apply a "mixed motive" standard to ADEA cases.
No longer may employees in ADEA litigation escape the burden of proving that age was the determinative factor in an adverse employment action. Employers now will defend by stating alternative reasons beside discriminatory animus for the adverse action, without having to carry the ultimate burden of proving the fact of those reasons being the motivation for the adverse action. Employers should carefully evaluate pending ADEA cases that would have implicated the "mixed motive" analysis and required a trial to determine if such cases may now be suitable for summary judgment and dismissal.