Age Discrimination in Employment Act: New Challenges for Employees!
In 1991, Congress amended Title VII of the Civil Rights Act of 1964. Specifically, the amendment allowed for the support of discrimination claims where an improper consideration was “a motivating factor” for an adverse employment action. For Title VII actions, courts implement a burden shifting analysis if discrimination was shown to be one of the reasons considered for the adverse employment action. Based on this burden-shifting framework, after the plaintiff offered sufficient evidence that discrimination was a motivating factor in the employment decision, the burden of persuasion would then shift to the employer to prove that it would have taken the adverse action regardless of the improper consideration.
However, the Age Discrimination in Employment Act (ADEA) was not likewise amended. Congress left the original language of the ADEA untouched, which prohibits adverse employment actions “because of” an employee’s age. The U.S. Supreme Court, in a 5-4 decision in the case of Gross v. FBL Financial Services, Inc. (June 18, 2009), 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 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.” The Court partially relied on Congress’s choice not to amend the ADEA as it had Title VII, and declined to utilize the “mixed motive” burden shifting framework employed in Title VII cases.
This recent decision interpreting the ADEA makes it much easier for the employer to defend against liability in age discrimination suits. The Court interpreted the ADEA as not allowing for employees to establish a discrimination claim by showing that age was simply a motivating factor; they must now show that if it were not for the employee’s age, the employee would not have been removed from his or her position. The employer does not have to prove that it would have taken the same actions without regard to the employee’s age; the burden remains solely the employee’s to bear.
For more information on this or any other employment related topic, please contact Guy Milhalter with Anderson Jones, PLLC, Attorneys at Law, at (919) 277-2541 or by email!