Supreme Court Backs Employers in ADEA Ruling

By Mark Walsh — June 18, 2009 2 min read
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The U.S. Supreme Court today made it more difficult for workers to win age-discrimination claims, in a case being watched by at least one major education group.

The court on Thursday did not decide any of the three major education cases pending before it. (See my post here.) The next decisions will come on Monday, and with a total of 10 cases remaining, the court’s term could still come to a conclusion by late next week.

Splitting 5-4 in a case of an insurance supervisor alleging age bias in his demotion by his employer, the justices refused to adopt a complex burden-shifting procedure for proving bias under the federal Age Discrimination in Employment Act.

The majority in Gross v. FBL Financial Services Inc. (Case No. 08-441) said that a plaintiff bringing a disparate-treatment claim under the ADEA must generally prove that age was the central motivating factor for an adverse employment action. It said the statute did not permit the kind of burden-shifting exercise the court has approved for the main federal job-discrimination law--Title VII of the Civil Rights Act of 1964.

Under Title VII, the burden of proof in a discrimination suit sometimes shifts to the employer to show it would have taken the same action regardless of race, sex, or other protected classification.

“We hold 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,” Justice Clarence Thomas wrote for a majority that included Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Samuel A. Alito Jr.

“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,” Justice Thomas added.

In a dissent joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, Justice John Paul Stevens said the majority reached out to distinguish the ADEA and Title VII “in an unabashed display of judicial lawmaking.”

“The court’s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law,” Justice Stevens said.

The National School Boards Association, in this friend-of-the-court brief filed in the side of the employer in the case, had urged the court not to adopt the burden-shifting mechanism for the age-discrimination law, and it got what it wanted.

The NSBA said placing the burden of proof on employers such as school districts in certain age-bias cases would “render schools more vulnerable to unfounded discrimination claims challenging decisions not motivated by discrimination that statistically favor workers under 40.”

The ADEA’s protections kick for workers at age 40.

A version of this news article first appeared in The School Law Blog.