Age Must Be Main Factor Leading to Adverse Employment Action

Adverse employment actions, such as reductions in force, are often challenged by older workers.  A recent decision of the United States Supreme Court may make it easier for employers to defend themselves against such claims.

In Gross v. FBL Financial Services, Gross, an employee of FBL, sued for age discrimination after FBL demoted him and transferred some of his responsibilities to a younger worker.  The Supreme Court held that employees asserting federal age discrimination claims under the Age Discrimination in Employment Act ("ADEA") must prove that age is the main factor behind an adverse employment action.  The issue in the FBL case was whether employees must present direct evidence of age discrimination in order to shift the burden of proof to the defendant under a "mixed-motive" analysis (where a decision is allegedly based on both permissible and impermissible factors).  The Court concluded that under the ADEA, unlike Title VII, the employee must show that "but for" the employee's age, the employer would not have implemented the adverse action - not just that age played a part in the decision. 

A legislative response to this employer-friendly decision is a definite possibility.