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U.S. Supreme Court Makes Federal Age Discrimination Cases More Difficult to Prove

In a recent 5-4 opinion, the United States Supreme Court made it more difficult for employees to prove age discrimination in employment cases.  Prior to the ruling in Gross v. FBL Financial Services, Inc. (2009), many jurisdictions applied the two step analysis used in discrimination claims under Title VII (the federal anti-discrimination law which prohibits discrimination based on gender, race, ethnic origin, or religion,) to determine if age discrimination occurred.  Under that approach, plaintiffs could prevail if they could demonstrate that age formed part of the employer’s motivation for the adverse employment action, the so called (mixed motive cases), despite evidence of a legitimate, non-discriminatory motive

In 1991, Congress amended Title VII to allow recovery for cases where discriminatory animus formed part of the employment decision in race, religion, ethnic origin, and gender cases.  If a plaintiff could demonstrate that the employer, with a legitimate, non-discriminatory reason for the action, also had some type of discriminatory animus, that plaintiff could recover under the  “mixed motive” theory.  Since that time, federal courts grappled with the issue of whether the mixed motive approach could also be applied to age discrimination cases because Congress, at the time it amended Title VII, did not specifically include age in the group of protected classes under which the mixed motive approach could be utilized

The Gross court resolved the issue and said that the two step, mixed motive analysis does not apply to age discrimination cases.  Plaintiff’s must now demonstrate that age was the sole motivating factor in employment discrimination cases.  As a result, it will much more difficult for plaintiff’s to prevail in a age discrimination case. 

The practical result of this ruling is that many plaintiffs’ attorneys will most likely bring age discrimination suits in state courts, rather than federal courts, where possible. That will be especially true in states which have liberal state anti-discrimination laws.

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