A sharply divided U.S. Supreme Court made it more difficult for employees to prove age discrimination charges against their employers. The decision was announced on June 19, 2009.
The Supreme Court, in a 5-4, held that the text of the Age Discrimination in Employment Act does not allow a worker to establish discrimination by showing that age was one motivating factor for the employer's action. Instead, the majority held, employees must show that age was the decisive factor behind the employer's adverse job action.
The decision appears to eliminate mixed-motives cases out of the age act. The ADEA's text bars discrimination "because of" the individual's age, Thomas wrote. The ordinary meaning of the "because of" requirement is that age was the reason the employer decided to act.
The majority opinion, by Justice Thomas holds that "[t]o establish a disparate treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for' cause of the employer's adverse decision.” The Court Majority consisted of Justice Thomas, the author, Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito Jr.
The employee must prove this "but-for" cause by a preponderance of the evidence. The evidence may be direct or circumstantial. And the burden of persuasion always stays with the plaintiff. It never shifts to the employer.
Lawyers who represent employers, called the decision "surprising" saying that Title VII of the Civil Rights Act of 1964 permits mixed-motive cases, and the high court, in the past, has held all other seminal Title VII precedents applied to the ADEA.
The majority opinion was met a sharp dissent from Justice John Paul Stevens, who noted that the "but-for" standard adopted by the majority had been rejected by the Court in PriceWaterhouse v Hopkins, 490 US 229 (1989) and by Congress when it amended Title VII in 1991.
"Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII," Stevens wrote. "I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking."
The decision was seen as a "big win" for employers. Some observers forecast a swift congressional effort to legislatively overturn the decision and declare directly that age is “a motivating factor” and not the “decisive factor” in an employment decision.
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