On June 18, 2009, the United States Supreme Court handed down its decision in Gross v. FBL Financial Services, Inc., No. 08-441.  The case involved the determination of whether a “mixed motive” analysis is available in a suit brought under the Age Discrimination in Employment Act (ADEA).  In a 5-4 decision, the Court determined that it is not.  

The mixed motive analysis has been applied in Title VII cases and provides that once a plaintiff proves that his membership in a protected class played a motivating part in the employment decision, a defendant only avoids liability by proving by a preponderance of the evidence that it would have made the same decision even if that factor had not been taken into account.  In Gross, the parties asked the Court to determine whether a plaintiff had to present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.  However, the Court held that before reaching this question, it had to determine whether the text of the ADEA even authorizes a mixed-motive age discrimination claim. 

The Court recognized that following its adoption of the mixed motives analysis in a Title VII case, Congress amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was a motivating factor for an adverse employment decision.  However, Congress neglected to add such a provision to the ADEA.  Furthermore, based on the plain language of the ADEA, which provides that it is unlawful to discriminate against an individual because of such individual’s age, to state an ADEA claim, age must be the “reason” that the employer decided to act.  Based on the plain language of the statute, the Court held that a plaintiff in an ADEA suit must prove that age was the “but-for” cause of the employer’s adverse decision, and the plaintiff retains the burden of persuasion to establish that age was the “but-for” cause.  Therefore, the mixed motives analysis does not apply in a suit brought under the ADEA.

The bottom line is:  it will be harder for ADEA plaintiffs to make their case and easier for employers to obtain summary judgment dismissing such cases short of trial.