By a narrow margin, the Supreme Court has made it more difficult for employees to prevail in age discrimination suits.

In a 5-4 ruling Thursday, June 18, the court held that in an age bias case, an employee has to prove that age was the only reason he or she was fired, demoted or suffered some other work setback.

The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vermont, called the decision an “overreaching by a narrow majority” that would hurt older employees.

Leahy’s reaction may signal that Congress will act to overturn the decision, as it did recently in a pay discrimination case.

The Supreme Court held that under the Age Discrimination in Employment Act, age cannot be one of many factors that led to an adverse employment action.

That sets the statute apart from Title VII, the federal law that prohibits discrimination based on race, sex, color, national origin and religion. In Title VII cases, a plaintiff only needs to show that minority status was one reason influencing an employer’s behavior.

In the Supreme Court case, Jack Gross began working for FBL Financial Group Inc. in 1971. By 2001, he was the claims administration director. But in a 2003 reorganization, when he was 54, FBL eliminated his position, reassigning Gross to a claims project coordinator job and giving his previous duties to a colleague.

Gross alleged that FBL demoted him because of his age. FBL asserted that it put Gross in a job that was a better fit for his skills.

The trial court told the jury that it should decide in favor of Gross if it found that a preponderance of the evidence showed that he had been demoted and that age played a role. It should rule for FBL if the company proved that it would have demoted Gross regardless of his age.

The jury found for Gross and awarded him $46,945. The 8th Circuit Court of Appeals reversed the decision, however, holding that the “mixed-motive” jury instruction was flawed.

The Supreme Court was asked to rule whether Gross had to present direct evidence of age discrimination in order for the jury to consider whether age was one of the factors in Gross’ demotion.

But the Supreme Court majority never got to that question because it held that the burden of proof never shifts to the employer in an age discrimination case.

“A plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action,” wrote Justice Clarence Thomas for the majority. “The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”

In a dissenting opinion, Justice John Paul Stevens said that the Supreme Court and Congress have both rejected the “but-for” argument.

“The most natural reading of (ADEA) prohibits adverse employment actions motivated in whole or in part by the age of the employee,” Stevens wrote. “I disagree not only with the court’s interpretation of the statute but also with its decision to engage in unnecessary lawmaking.”

Leahy pointed out that the same justices—Thomas, Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito Jr.—who ruled against Lilly Ledbetter in her pay discrimination case again formed the majority in overturning a jury verdict in favor of an employee.  

“By disregarding congressional intent and the time-honored understanding of the statute, a five-member majority of the court today stripped our most senior American employees of important protections,” Leahy said in a statement.

Jim Burns, a partner at Reed Smith in Chicago, anticipates that Leahy and his colleagues will address the ruling with legislation. Earlier this year, Congress approved and President Barack Obama signed the Lilly Ledbetter Fair Pay Act, which extended the statute of limitations in pay cases in response to a Supreme Court verdict against Ledbetter.

“It is safe to assume that a bill will soon be introduced in Congress to overturn this decision by amending the ADEA so that it parallels Title VII in requiring a plaintiff to show only that age was a motivating factor,” Burns said.

—Mark Schoeff Jr.

Correction: July 8, 2009

The plaintiff in this case is named Jack Gross; he was originally identified as Jack Cross.