Supreme Court Holds that in ADEA Cases the Burden of Proof Does Not Shift Where Employee Presents Evidence that Age Was Motivating Factor

Today, in Gross v. FBL Financial Services, Inc., the Supreme Court declined to adopt Title VII's burden-shifting scheme that is applied to "mixed-motive" cases to claims brought under the ADEA. The Court held that even where a plaintiff produces some evidence that age was a motivating factor in the employment decision the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of age. Unlike Title VII, ADEA was not amended to explicitly authorize discrimination claims where an improper consideration was "a motivating factor" for the adverse action. Accordingly, a plaintiff may not establish discrimination under the ADEA by showing that age was simply a motivating factor; rather, the plaintiff must prove that age was the "but-for" cause of the employer's adverse decision. A copy of the decision can be read here.

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