Supreme Court sets high bar for age-bias suits

Older workers bear the burden of proof to show age was key reason they were fired or demoted.

The US Supreme Court has made it more difficult for employees age 40 and older to sue their bosses for age discrimination.

In a 5-to-4 ruling announced Thursday, the majority justices rejected the use of an elaborate burden-shifting mechanism that often favors plaintiffs in civil rights cases.

Instead, the high court said workers suing under the Age Discrimination in Employment Act (ADEA) must fight their legal battles the usual way, by presenting enough evidence to convince a judge or jury of the illegal activity.

The court added that to win an ADEA case, an employee must be able to prove not just that age played a role in an adverse employment decision, but also that it had a "determinative influence."

The decision, in Gross v. FBL Financial Services, is timely because it comes amid a prolonged economic downturn with many older workers under extreme pressure facing workplace downsizing.

"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," wrote Justice Clarence Thomas in the majority opinion.

In a dissent, Justice John Paul Stevens called the majority opinion "an unabashed display of judicial lawmaking."

He said the majority justices were adopting a "crabbed" interpretation of the age discrimination law. He said the majority was disregarding prior high court precedent and congressional intent.

In adopting a narrow reading of the ADEA, Justice Thomas said the court was justified in refusing to apply the same burden-shifting framework established in Title VII of the Civil Rights Act to the age discrimination law.

"This court has never held that this burden-shifting framework applies to ADEA claims. And we decline to do so now," he said.

Under Title VII, when a plaintiff is able to offer some evidence of discriminatory conduct, the burden of proof shifts to the employer, who must then demonstrate that he or she would have taken the adverse employment action regardless of race, gender, or ethnicity. If the employer can demonstrate a nondiscriminatory reason for the action, the plaintiff loses. But the burden-shifting approach complicates employer defense efforts, experts say.

The decision stems from a lawsuit filed by Jack Gross, a longtime employee of FBL Financial Services Inc., an insurance company in Des Moines, Iowa.

In 2003, the company reorganized. Mr. Gross, in his mid 50s, was demoted and replaced by a less qualified worker in her early 40s.

He sued, claiming his reassignment to a less desirable and lower paying job was a result of illegal age-based discrimination.

At trial, FBL management said the new job was a "better fit" for Gross. Lawyers for Gross presented evidence that in one part of the company everyone over 50 was offered a buy-out in the reorganization.

The jury sided with Gross, awarding him almost $47,000 in lost compensation. The company appealed. A panel of the Eighth US Circuit Court of Appeals reversed and remanded the case for a new trial. The appeals court said the trial judge gave improper instructions to the jury.

The Supreme Court's decision is a bit unusual because it addressed a question that neither party in the case had asked. The central issue in the case had been what level of evidence is necessary to trigger the burden-shifting mechanism in an age discrimination case.

Instead of answering that question directly, the court ruled that there is no burden-shifting in ADEA cases.

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