In a 5-4 decision authored by Justice Clarence Thomas in the case of Gross v. FBL Financial Services, the United States Supreme Court clarified that the plain language of the federal Age Discrimination in Employment Act (ADEA) requires that an employee affirmatively establish that age was the “but for” cause of the employer’s adverse decision and not simply one motivating factor underlying the action taken by the employer. This June 2009 opinion holds that a plaintiff claiming age discrimination must prove the challenged decision was made “because of” age – effectively eliminating “mixed motive” cases where an employee could show that age was a motivating, but not the sole reason, for the adverse job decision. Although the decision is strongly grounded in the text of the ADEA and reflects a strict construction of the “because of’ statutory language, it is inconsistent with the standard that is applied in Title VII litigation (which governs sex, race, ethnicity claims) which only requires a showing that a prohibited bases for discrimination was a factor in the employer’s decision.

This decision will certainly make it easier for an employer to prevail in age discrimination cases at the motion to dismiss and summary judgment stage and will provide greater leverage in negotiations. In addition, employers may see a decrease in the number of claims made in situations where multiple potential causes may have played a role in an employee’s termination. However, it will be interesting to watch whether Congress and the new administration take action to introduce a bill to amend the ADEA so that it tracks the same standard in Title VII requiring an employee to only show that age was a motivating factor in the employer’s decision-making. Thus far, the Obama administration has been proactive in introducing employment reIn a 5-4 decision authored by Justice Clarence Thomas in the case of Gross v. FBL Financial Services, the United States Supreme Court clarified that the plain language of the federal Age Discrimination in Employment Act (ADEA) requires that an employee affirmatively establish that age was the “but for” cause of the employer’s adverse decision and not simply one motivating factor underlying the action taken by the employer. This June 2009 opinion holds that a plaintiff claiming age discrimination must prove the challenged decision was made “because of” age – effectively eliminating “mixed motive” cases where an employee could show that age was a motivating, but not the sole reason, for the adverse job decision. Although the decision is strongly grounded in the text of the ADEA and reflects a strict construction of the “because of’ statutory language, it is inconsistent with the standard that is applied in Title VII litigation (which governs sex, race, ethnicity claims) which only requires a showing that a prohibited bases for discrimination was a factor in the employer’s decision.

This decision will certainly make it easier for an employer to prevail in age discrimination cases at the motion to dismiss and summary judgment stage and will provide greater leverage in negotiations. In addition, employers may see a decrease in the number of claims made in situations where multiple potential causes may have played a role in an employee’s termination. However, it will be interesting to watch whether Congress and the new administration take action to introduce a bill to amend the ADEA so that it tracks the same standard in Title VII requiring an employeelated legislation. to only show that age was a motivating factor in the employer’s decision-making. Thus far, the Obama administration has been proactive in introducing employment related legislation.