Justices Increase Burden on Age-Bias Plaintiffs

(CN) - The U.S. Supreme Court made age-bias cases harder to win, ruling 5-4 on Thursday that an employee must prove that age was the cause of the employer's action, and an employer need not show that it would have acted similarly regardless of the plaintiff's age.

Jack Gross, a longtime employee of Iowa-based FBL Financial Group, was 54 in 2003 when he was reassigned as a claims project coordinator. His previous job responsibilities were assigned to an employee in her early 40s.

Gross considered the reassignment a demotion and filed suit in 2004, claiming the reassignment violated the Age Discrimination in Employment Act (ADEA), which bars employers from discriminating based on age.

At trial, Gross was able to show that the reassignment was based at least partly on his age, while FBL insisted it was part of a corporate restructuring.

The district court instructed the jury that it must return a verdict for Gross if he proved that the company had used age as a motivating factor in demoting him. However, over the objections of FBL, the district court also told jurors that the "verdict must be for [Gross] ... if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age."

The jury awarded Gross $46,000 in lost wages, and FLB challenged the verdict based on the second set of jury instructions.

The 8th Circuit reversed the lower court, saying the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, in which the Supreme Court addressed the "proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964 ... when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations." Such cases are commonly referred to as "mixed-motive."

"Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims; the jury thus should have been instructed only to determine whether Gross had carried his burden of 'prov[ing] that age was the determining factor in FBL's employment action,'" Justice Thomas wrote for the majority opinion, joined by Justices Scalia, Kennedy, Alito and Chief Justice Roberts.

The ADEA does not authorized a mixed-motive age discrimination claim, Thomas concluded. "To establish a disparate treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the 'but-for' cause of the employer's adverse decision."

Justice Stevens disagreed, calling the majority decision "an unabashed display of judicial lawmaking" and "unwise and inconsistent with settled law." He was joined in dissent by Justices Souter, Ginsburg and Breyer. Justice Breyer filed a dissenting opinion, joined by Justices Souter and Ginsburg.

"The but-for standard the Court adopts was rejected by this Court in Price Waterhouse and by Congress in the Civil Rights Act of 1991," Stevens wrote.

Stevens added that the district court's instructions to the jury - the primary issue in the appeal - "seems appropriate and lawful."

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