Employee Bears Burden in Age Discrimination Lawsuits

An employee bringing an age-discrimination lawsuit against his employer must prove that age was the determining factor in the demotion or firing, the Supreme Court held today in a 6-3 ruling.

Plaintiff Jack Gross, 54, sued his employer, FBL Financial Group, Inc., after FBL demoted him and gave his old position to a younger employee. Gross brought his action under the Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for an employer to take adverse actions against an employee “because of such individual’s age.”

Over FBL’s objections, the judge instructed the jury that if Gross proved his age played any part in the decision to demote him, the burden would shift to FBL to prove it would have demoted him regardless of his age. The jury returned a verdict for Gross, awarding him over $46,000 in lost compensation.

Today the Supreme Court vacated that verdict, finding that the judge had improperly instructed the jury.

In an ADEA disparate-treatment claim, the plaintiff has the burden of proving, by a preponderance of the evidence, that age was the “but-for” cause — that is, the determining factor — of the employer’s decision.

Lower courts were inappropriately applying Title VII precedent to this ADEA action, the Court found. Title VII prohibits discrimination on the basis of race, color, religion, sex or national origin. But unlike Title VII, the burden of proof in ADEA age-discrimination claims “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,” Justice Clarence Thomas wrote for the majority.

The case was Gross v. FBL Financial Services, Inc.