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Top Ten Developments in Employment Law for HR Professionals in Virginia — #2

Published by on January 19, 2010

The top ten developments in employment law for HR professionals in Virginia for 2009 continues, in no particular order.  Number 2:  Supreme Court holds that ADEA claims are not governed by the Title VII mixed motive standard and imposes a higher burden of proof on ADEA claims.  More after the break. In Gross v. FBL Financial Services, […]

The top ten developments in employment law for HR professionals in Virginia for 2009 continues, in no particular order.  Number 2:  Supreme Court holds that ADEA claims are not governed by the Title VII mixed motive standard and imposes a higher burden of proof on ADEA claims.  More after the break.

In Gross v. FBL Financial Services, Inc., the Supreme Court held that the mixed motive standard used to prove intentional discrimination in Title VII claims does not apply to claims brought under the ADEA.  In that case, the employee sued his employer, claiming that he was demoted due to his age in violation of the ADEA.  The trial court held that the employee had to prove by a preponderance of the evidence that age was “a motivating factor” in the employment action.  On appeal, the Eight Circuit reversed, and the Supreme Court affirmed.  Because the ADEA provides that it is unlawful to make certain employment decisions “because of” an individual’s age, the Court held that “[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.”  The Court instructed that the burden of persuasion never shifts to the employer to show that it would have made the same decision regardless of age, even in the face of evidence that age was a motivating factor in the decision.  The Court found it significant that unlike Title VII, the ADEA has never been amended to provide that a plaintiff may prevail by showing that age was a motivating factor in the challenged employment decision.

The practical effect of this decision is that it will now be more difficult for age discrimination plaintiffs to withstand a pre-trial motion for summary judgment by the employer.  For their part, employers should take care to document all disciplinary actions carefully and accurately and maintain complete personnel files on every employee.

Age discrimination claims will not disappear, however.  Applying Gross, in November 2009, a federal jury in Pennsylvania awarded over $6.2 million to two former employees who claimed they were laid-off because of their age.  The jury found that the company had engaged in “willful” discrimination, which automatically doubled each employee’s back pay award.

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