U.S. Supreme Court Rules on Iowa Age Discrimination Case
The U.S. Supreme Court recently handed down a decision in Gross v. FBL Financial Services. The Court ruled that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the "but for" cause of the employer's adverse employment decision, and that an employer need not show that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Accordingly, plaintiffs must now prove that age was a factor in a decision. The burden of proof no longer shifts.
The case is widely viewed as a big win for employers but some employment lawyers, like Daniel Schwartz, believe employers should largely ignore the decision. Daniel says that while it will be "technically" harder for plaintiffs to establish a claim, it is only marginally so, and he also expects "corrective" legislation at some point. From a practical perspective he does not see a huge change in the way employers will defend age discrimination claims or the way in which plaintiffs will bring those claims.
Ross Runkel of Law Memo says it is the biggest employment law case of 2009 and considers it a big surprise because the issue decided by the Court was not briefed and argued. But, like Schwartz, he too expects action from Congress so the impact may be short lived.
Read the decision here.
I find age discrimination claims to be the most difficult type to prove, and this decision did not make it any easier. The problem with age discrimination is that it is easy to disguise it as a legitimate business decision unless you have an overt ageist comment by a decisionmaker.
A while back I represented a class of older workers who were cut loose during a RIF. 63% of the laid-off workers were forty or older. The employer argued, of course, that all decisions were made based on performance. I was able to come up with some convincing evidence that the overall cost of each worker was the driving factor. Tenure=Cost=Age. Sounds like a good case, right? Wrong.
I quickly learned that, at least a few years ago, it was legal in the Eighth Circuit to unload higher priced workers even though such employees are normally older and have obtained their high pay through long tenure. The bright side is that, during the course of getting slapped away by the Eighth Circuit in St. Louis, I was able to stop across the street and catch a few innings of Cardinals ball.