Leave it to the Supreme Court to come out with a decision on discrimination while I’m attending the ABA Presidential Summit on Diversity (which I’ll be live-tweeting and blogging from starting on Friday).
So, while I’ve been tied up for most of the day, the news sites and employment law blogs have been a buzz with summaries of Gross v. FBL Financial Services. (You can view my prior coverage of the case here.)
Each of the blogs has done a good job wrapping up the case, including the Jottings from an Employer’s Lawyer, LawMemo, The Laconic Law Blog.
What’s the case about technically? The Washington Employment Law Update sums it up:
In a 5-4 decision delivered by Justice Clarence Thomas, the U.S. Supreme Court in Gross v. FBL Financial Services, Inc. has held 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. Thus, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.
But I like the Manpower blog’s summary even better:
Plaintiffs used to be able to state a claim if age was a factor in a decision. Now, they must prove it was the factor.
My quick read of the decision and the impact to employers in Connecticut leads me to three quick notes:
- For employers, yes, this decision will make it "technically" harder for an employee to establish a claim of discrimination, but only marginally so. The vast majority of ADEA cases never used the mixed motive analysis anyways. If there is circumstantial evidence of discrimination, courts traditionally allow those claims to proceed to trial.
- The conventional wisdom is that, like the Ledbetter decision before it, we’re likely to see some "corrective" legislation by Congress that builds this back into it.
- Employers in Connecticut also have to be concerned about claims of age discrimination brought under state law; those claims are going to be more difficult for employers to dismiss before trial.
So, let the professors discuss the theoryt of this decision; from a practical perspective, I don’t expect a huge shift on how employers defend cases or how age discrimination cases are brought.