Last year, the United States Supreme Court published Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009), and established a new standard of proof for federal Age Discrimination in Employment Act (“ADEA”) claims.  The Court held that proof that age was a “motivating factor” for an adverse employment action was insufficient and that plaintiffs must meet the more stringent “but for” standard of proof.  Stated another way, the Court held that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” The Court also rejected the idea that the burden of persuasion shifted to employers to prove that it would have made the same decision regardless of the plaintiff’s age.  In short, the Gross decision may make it more difficult for plaintiffs to prove ADEA age discrimination claims.

Although the law has changed, it appears that the Supreme Court’s ruling has had little practical effect.  A writer in “Corporate Counsel” recently observed that plaintiffs having evidence sufficient to defeat summary judgment on an employer’s defense that age was, if any factor, only one of the factors which went into the adverse employment decision, usually have sufficient evidence to prove “but for” causation.  (See  Hence, the “Corporate Counsel” advice to probe a plaintiff’s proof through discovery to determine whether there is evidence of performance deficiencies or other factors which were considered by decision makers.  (Id.)

Of course, no employer wants to engage in discovery or even be involved in ADEA litigation.  Thus, employers subject to the requirements of the ADEA should actively do their best to avoid litigation.  Employers should not refuse to hire, terminate, or otherwise discriminate against persons who are 40 years old or older, solely on the basis of age (or on the basis of sex or race, for that matter).  For example, if economic forces are causing an employer to make lay-offs, an employer should not lay-off older workers simply because of their age.  Employers should also consider whether apparently neutral employment policies and practices have a disparate impact upon older employees.

Once again, Mom’s advice is right on – an ounce of prevention is worth a pound of cure!

By:  Kurt E. Lee, Board Certified Business Litigation Lawyer