LABOR & EMPLOYMENT
June 2009
U.S. Supreme Court Issues Key Decision for
Employers in Age Discrimination Case
In a narrow and contentious 5-4 decision, the United States Supreme Court yesterday ruled
against an age discrimination plaintiff, stating clearly that the plaintiff must prove that “but for” his
age, the alleged discrimination would not have occurred.
The Court’s decision in Gross v. FBL Financial Services, Inc. clarifies that unlike Title VII, the
Age Discrimination in Employment Act (ADEA) does not allow a plaintiff to establish discrimination
by showing that age was simply a motivating factor. Instead, the majority held that an ADEA plaintiff
must prove by a preponderance of evidence that age was the “but-for” cause of the alleged adverse
employment action.
The majority decision in Gross rejects the application of the so-called “mixed motive” analysis
to age discrimination cases. The Supreme Court first adopted the “mixed motive” analysis in 1989 in
the Title VII case, Price Waterhouse v. Hopkins 490 U. S. 228 (1989) (plurality opinion). In Price
Waterhouse, the Court considered sex a “substantial” or “motivating” factor for action taken against a
female plaintiff. Under the Price Waterhouse analysis, when a plaintiff produces evidence that sex
was a “motivating factor” in a decision, the burden of proof shifts to the employer.
But, in the Gross decision, the Supreme Court majority refused to extend Price Waterhouse to
ADEA cases. “Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish
discrimination by showing that age was simply a motivating factor.” “[T]he ordinary meaning of the
ADEA’s requirement that an employer took adverse action ‘because of’ age is that age was the
‘reason’ that the employer decided to act.”
The Court further held 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 majority also criticized the Price Waterhouse analysis generally. “Whatever the
deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was
decided that its burden-shifting framework is difficult to apply. For example, in cases tried to a jury,
courts have found it particularly difficult to craft an instruction to explain its burden-shifting
framework.”
In Gross, the plaintiff, Mr. Gross, was 54 years old when he alleged that his employer
transferred his key responsibilities to a younger, 40-something female employee because he was too
old. Mr. Gross won at trial, but the Eighth Circuit reversed the jury verdict. Yesterday’s 5-4 ruling
vacates the Eighth Circuit’s opinion.
Justice Clarence Thomas penned the majority decision, which was joined by Chief Justice
Roberts as well as Justices Scalia, Alito and Kennedy. Veteran Justice John Paul Stevens, in one
dissent, accuses the majority of ignoring “prudential court practices” and of “utter disregard of our
precedent and Congress’ intent.” Justices Souter, Ginsburg, and Breyer joined in that dissent. Justice
Breyer filed a separate dissent, joined by Souter and Ginsburg, where he disagreed with the narrow
interpretation of the text of the ADEA.
For additional information regarding this case, state or federal anti-discrimination laws or other
workplace issues, please contact the Barnes & Thornburg Labor and Employment attorney with whom
you work, or a leader of the firm’s Labor and Employment Law Department in the following offices:
Kenneth J. Yerkes, Chair (317) 231-7513; Norma W. Zeitler, Chicago (312) 214-8312; William A.
Nolan, Columbus (614) 628-1401; Eric H.J. Stahlhut, Elkhart (574) 296-2524; Mark S. Kittaka, Fort
Wayne (260) 425-4616; Michael A. Snapper, Grand Rapids (616) 742-3947; Peter A. Morse,
Indianapolis (317) 231-7794; Janilyn Brouwer Daub, South Bend (574) 237-1139; and Teresa L.
Jakubowski, Washington, D.C. (202) 371-6366.
© 2009 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is proprietary and the
property of Barnes & Thornburg LLP. It may not be reproduced, in any form, without the express written consent of Barnes
& Thornburg.
This Barnes & Thornburg LLP publication should not be construed as legal advice or legal opinion on any specific
facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult
your own lawyer on any specific legal questions you may have concerning your situation.
Please send address changes or requests to opt out of these alerts to megan.decker@btlaw.com.
• One of 22 firms nationally on Workforce Management Magazine's 2009 "Hot List" of Top
U.S. Labor and Employment Firms
• Top 20 busiest firm for ADA (#8), Civil Rights (#10), Employment Practices (#18) (2009
Litigation Almanac, Law360)
• Listed as one of Corporate Counsel Magazine's 2009 "Go-To Law Firms of the World's
Leading Companies"
For human resource consulting services, contact Krista Skidmore at 317.229.3035 or visit
FlashPointHR.com. FlashPoint is a non-legal consulting services affiliate of Barnes &
Thornburg LLP.