Under Title VII, employees may be able to prove discrimination even where the employer articulates other legitimate grounds for the action taken.  If the employee can demonstrate that race, gender, etc. was a contributing factor to the decision, the burden of proof shifts to the employer to show that the decision would have been the same regardless of the plaintiff’s protected status.  These cases are known as “mixed motive” discrimination actions.

Last week, the U.S. Supreme Court declined to extend the mixed motive theory to the Age Discrimination in Employment Act.  In Gross v. FBL Financial Services, the plaintiff claimed that his reassignment to a new position was motivated by his age.  The district court advised the jury that if age was deemed to be a contributing factor to the decision, the employer had the burden of showing that its decision would have been the same even if age was not taken into account.  The employer appealed a jury verdict for the plaintiff.

In a 5-4 decision, the Supreme Court concluded that the Age Discrimination in Employment Act will not support a mixed motive theory.  The Court undertook a comparative analysis of the language of Title VII and ADEA.  It determined that ADEA does not provide for liability other than in situations where age is the reason for the adverse employment action.

This decision limits plaintiffs’ options in age discrimination cases.  Where the facts are muddled, and the employer offers legitimate reasons for the decision, the plaintiff will bear the burden of proving that age was the motivating reason for the decision made.  If it was only a contributing factor to an otherwise legitimate decision, the employer will not be deemed to have violated ADEA.