ADEA Claims in the Wake of Gross v. FBL Financial Services, Inc.

In June 2009, the United States Supreme Court issued its decision in Gross v. FBL Financial Services, Inc., holding that an employee bringing a claim under the Age Discrimination in Employment Act must show that age was the “but-for” cause of the challenged adverse action.

Gross won at trial under an ADEA mixed-motive jury instruction, which allowed the jury to find his employer liable for age discrimination if Gross’s age was a “motivating factor” in the adverse action. The Supreme Court reversed Gross’s verdict, finding that “the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of age’ is that age was the [primary] ‘reason’ that the employer decided to act,” and not just one of many factors that played a role in the employer’s decision.

The Gross holding simply means that a plaintiff must prove that her age was the determining factor of the adverse action, not the “sole cause” of the adverse action and not a “motivating factor” in the adverse action. Gross has also affected age discrimination claims brought under state statutes, but has not extended its reach into many distinct federal or state statutes.

Changes Caused by the Gross Decision

Despite a change in the causation standard, courts still apply the traditional framework for processing age discrimination claims. Accordingly, in most courts, employers still must establish a legitimate business reason for taking adverse actions against employees who have set forth a prima facie case of age discrimination.

The cases upon which Gross will have the least impact are the cases where employees have strong direct evidence of age discrimination against them. Where an employee can provide direct evidence of age discrimination, he does not need to establish a causal connection—i.e., Gross’s “but-for” standard of causation—in order to prevail upon his claim.

For example, in Inman v. Klockner Pentaplast of America, Inc., 347 Fed. App’x. 955 (4th Cir. 2009), as the Gross decision was working its way through the courts, the Fourth Circuit held that the discriminatory statements by KPA officials made at the time of Inman’s termination and the disparaging comments made prior to his termination gave Inman substantial direct evidence that KPA terminated his employment because of his age.

Essentially, because Inman had such strong direct evidence of age discrimination, he would not have needed to prove that his age was the determining factor in his termination: KPA had done that for him, by telling him that he no longer fit KPA’s “profile” and “model” and that the company wanted to “revitalize” and to use a “more energetic person.”

With direct evidence of discrimination that bears squarely on the employment decision and reflects a prohibited animus, a jury could easily find that age discrimination was the “but-for” cause of a personnel action against an employee. However, cases built on circumstantial evidence can still survive the Gross analysis, and employers should take these claims seriously.

Additionally, employers can no longer avoid liability in age discrimination claims by asserting that they would have made the “same decision” regarding a questioned personnel action regardless of the employee’s age.

Further, the Gross decision has caused little change in the analysis of employment claims brought under other statutes. Generally, courts have explicitly rejected applying the Gross standard of causation to Title VII claims. In Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010), the Fifth Circuit held that applying Gross to a Title VII retaliation case “would be contrary to Gross’s admonition against intermingling interpretation of the two statutory schemes.” In Seridakis v. S. Broward Hosp. Dist., 468 Fed. Appx. 926 (11th Cir. Mar. 29, 2012), the Eleventh Circuit held that because the ADEA and Title VII have “materially different burdens of persuasion,” the Gross decision did not control the court’s analysis of the plaintiff’s Title VII retaliation claim.

However, the application of Gross to Family and Medical Leave Act cases has been less than homogenous. For example, in Hunter v. Valley View Local Sch., 579 F.3d 688 (6th Cir. 2009), the Sixth Circuit held that the Gross decision does not bar mixed motive claims under FMLA, and in Pantoja v. Monterey Mushrooms, Inc., 10-CV-1184, 2011 WL 4737407 (C.D. Ill. Oct. 6, 2011), the United States District Court for the Central District of Illinois held that Gross requires proof of “but-for” causation in all civil rights and employment discrimination cases unless the statutory language otherwise indicates.

Practical Advice for Handling Age Discrimination Claims After Gross