Last week, the Eighth Circuit Court of Appeals ordered a new trial in Gross v. FBL Financial Services, Inc., the case in which the United States Supreme Court’s previous holding had announced a standard that now makes it more difficult for employees to prevail on claims under the Age Discrimination In Employment Act (ADEA).  The original trial had resulted in a verdict in the plaintiff’s favor, but was subsequently reversed by the Eighth Circuit Court of Appeals before being heard by the Supreme Court.

In its decision in Gross, the Supreme Court held that an employee had to prove by a preponderance of the evidence, that age was the deciding factor or the "but-for" cause of the challenged adverse employment action, and not just one of several factors that motivated the employer.  The Supreme Court further opined that the burden of persuasion never shifts to the employer under the ADEA but always remains with the employee to demonstrate that age was the “but-for” or the deciding cause in the adverse employment decision.

Prior to the Supreme Court’s ruling in Gross, an employee merely had to establish that age was a factor in an adverse employment decision, like a demotion or a layoff, before the burden of proof shifted to the employer to show that it had acted for a valid reason other than age discrimination.  The Supreme Court’s decision was highly controversial as it means that employees bringing age discrimination claims are now subject to a higher burden than those employees bringing race, gender, national origin or religious discrimination claims under Title VII of the Civil Rights Act of 1964.

The Eighth Circuit Court of Appeals has now held that, in light of the Supreme Court’s decision, the case must be retried as, in the original trial, the jury was instructed incorrectly that FBL had the burden of showing that age was not the determining factor in its decision.  The Eighth Circuit may not necessarily have the last word on Gross’s fate as Congress has recently introduced legislation which, if passed, would statutorily overrule the Supreme Court’s decision and shift the burden back to the employer to demonstrate it acted for a non-discriminatory reason once an employee shows that his or her age was a “motivating factor” behind an employment decision.

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.