Age as ‘But-For’ Cause Under ADEA

Jack Gross began working for FBL Financial Services in 1971. In 2003, at age 54, Gross was reassigned from a claims administration director position to a claims project coordinator. At that same time, FBL transferred many of Gross’ job responsibilities to a newly created position of claims administration manager. That position was given to someone Gross had previously supervised who was in her early 40s.

Gross filed suit, alleging that FBL demoted him in violation of the Age Discrimination in Employment Act. The district court instructed the jury to enter an award for Gross if he proved that he was demoted and his age was a “motivating factor” in the demotion decision. The jury returned a verdict for Gross. FBL appealed, and the U.S. Court of Appeals for the 8th Circuit in St. Louis reversed and remanded the case to the district court, holding that the jury had been improperly instructed under the standard. It said this was a “mixed motive” case, meaning that Gross had alleged he suffered an adverse action because of both permissible and impermissible considerations.

The U.S. Supreme Court vacated the 8th Circuit’s decision and remanded the case to the district court, finding that a plaintiff bringing an ADEA disparate-treatment claim must prove that age was the “but for” cause of the adverse action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one “motivating factor” in that decision. Gross v. FBL Financial Services, Inc., U.S. No. 08-441.2009 (6/18/09).

Impact: Unlike Title VII of the Civil Rights Act of 1964, the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Under Gross, an employer does not have to prove that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision.

Workforce Management, July 20, 2009, p. 10 — Subscribe Now!