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Friday, July 17, 2009


Loose ADEA Lips Can Sink Companies

Repirint O&A News 07/19/09

In Gross v. FBL Financial Services, Inc. decided by the United States Supreme Court on June 18, 2009, the high Court ruled by a 5-4 vote, that under the federal Age Discrimination in Employment Act (“ADEA” 29 U. S. C. §623(a)), employees alleging disparate treatment based on age must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action.

Jack Gross, age 54, worked for FBL Financial Group (“FBL”) as a claims administrator until he was reassigned to the position of claims project administrator, while most of his previous duties were transferred to the newly-created position of claims administration manager. The Manager position was given to an employee in her early 40s who Gross once supervised. Gross sued for age discrimination and a jury awarded Gross $46,945 in lost wages. FBL’s appealed the trial judge’s “mixed-motive” jury instruction and the U.S. Court of Appeals for the Eighth Circuit reversed and remanded the case holding that ADEA plaintiffs must present “direct evidence” of age discrimination.

Gross appealed to the U.S. Supreme Court on the question of whether a plaintiff must present direct evidence of discrimination in order to obtain a “mixed-motive” jury instruction in a non-Title VII discrimination case. A “mixed-motive” instruction tells the jury that if it finds the plaintiff has shown that both legitimate and illegitimate reasons motivated the employment decision, the burden of persuasion shifts to the employer. In order to limit or avoid liability, the employer must then demonstrate that it would have reached the same decision based on a non-discriminatory reason. “Mixed-motive” is the standard in claims brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex or national origin.

The Supreme Court answered: “Title VII, which has been amended to explicitly authorize discrimination claims where an improper consideration was “a motivating factor” for the adverse action, see 42 U. S. C. §§2000e–2(m) and 2000e–5(g)(2)(B), the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.” FBL Wins.

Practical Counsel: Direct evidence of age discrimination constitutes an expression typically made by the decision maker such as “this old dog just won’t hunt anymore” or a supervisor’s comment on multiple occasions that plaintiff “has been around since Christ was a baby”. Accordingly, train your managers never to use age related expressions in their evaluations of employees and your company should not be an ADEA casualty. Senator Patrick Leahy (D-Vt.) criticized the opinion as “wrong-headed” comparing it to the Court’s 2007 ruling in Ledbetter v. Goodyear Tire, which Congress overturned with the Lilly Ledbetter Fair Pay Act of 2009. So look for Congress to seek to reverse by legislation on this issue as well.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at