Attorneys, employee advocates and lawmakers say a surprise U.S. Supreme Court ruling eliminating “mixed-motive” claims under the Age Discrimination in Employment Act will make proving age bias in the workplace a much tougher task for plaintiffs.

“Now, the most minimum documentation is all an employer will need” to prevail, said Simon Lazarus, public policy counsel for the National Senior Citizens Law Center. “The employee will have to prove that age discrimination — rather than cost savings or efficiency or something [else] — was not only a cause, not only the significant cause, not only the motivating cause, but the exclusive cause of an adverse employment action.”

Beyond the question presented

When the court took up Gross v. FBL Financial Services, it agreed to decide only if plaintiffs must show direct, as opposed to circumstantial, evidence to prevail in mixed-motive ADEA cases.

But the 5-4 ruling in the case went much further, holding that plaintiffs cannot bring mixed-motive disparate-treatment claims under the ADEA at all. Instead, plaintiffs must prove that age is the “but for” cause of an adverse employment decision in order to get relief.

The issue was not raised in either the certiorari petition or the respondent’s certiorari opposition brief. Instead, it was raised for the first time by the respondent in its brief on the merits — after the question presented had been set.

The court also held that when a plaintiff presents evidence of age bias, the burden of proof does not shift to the employer to show a legitimate reason for the adverse action as it does in Title VII bias cases.

“This Court has never held that this burden-shifting framework applies to ADEA claims,” Justice Clarence Thomas wrote. “And, we decline to do so now.”

In his dissent, Justice John Paul Stevens blasted the majority for going out of bounds.

“I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking,” Stevens wrote. “[T]he Court is unconcerned that the question it chooses to answer has not been briefed by the parties or uninterested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.”

Tougher road for plaintiffs

Both employee- and employer-side attorneys agreed that the case changes the landscape for bias claims under the ADEA.

“I think age discrimination has definitely become a much harder case for plaintiffs to prove than other types of discrimination,” said Diana L. Hoover, a partner in Mayer Brown’s Houston office.

Lazarus, a former senior counsel at Sidley Austin, said the ruling essentially takes the teeth out of the age bias statute.

“[The court] really turned the ADEA into a workplace ghost,” Lazarus said, in much the same way the court’s 2007 ruling in Ledbetter v. Goodyear Tire and Rubber Co., which said that the statute of limitations for disparate pay claims under Title VII is not restarted with each paycheck, affected equal pay claims.

The evidentiary and proof burdens the court placed solely on plaintiffs will make age bias claims nearly impossible to prove, Lazarus said.

“There is no way to prove that, because it is in the head of the employer where the evidence lies,” he added.

But, Hoover said, the court’s decision won’t necessarily result in fewer successful age bias claims. That’s because the decision does not affect disparate impact claims, and disparate treatment claims were already very difficult for plaintiffs to prove even before the ruling, she said.

“Age discrimination cases are hard [because] oftentimes it is difficult to know what is motivating an employer,” she said. “A lot of times you will see cases where [plaintiffs claim] ‘a supervisor would call me grandpa’ or ‘they put a walker in my office on my 50th birthday.’ A lot of times courts will say that is teasing and that it’s not indicative of age animus.”

Judicial activism?

Many plaintiffs’ attorneys were not only surprised but also angered by the opinion.

“This decision was an ambush by the conservative majority,” Lazarus said. “The fact that the court reached out and grabbed this opportunity to shoot down the ADEA — it looks a lot like judicial activism.”

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., quickly blasted the court, comparing the ruling to Ledbetter, a hint that a congressional response could be forthcoming.

“This overreaching by a narrow majority of the court will have a detrimental effect on all Americans and their families,” Leahy said in a statement issued after the decision was announced. “By disregarding congressional intent and the time-honored understanding of the statute, [the court’s majority] stripped most senior American employees of important protections.”

However, Hoover pointed out that Congress could have amended the ADEA at the same time Title VII was changed to protect mixed-motive cases, but it chose not to do so.
“I think Congress shot itself in the foot on this one,” Hoover said. “I think it’s funny for members of Congress to say the court is engaged in lawmaking. It was actually strictly construing the statute.”

The number of newly filed age bias claims rose 29 percent last year, according to the Equal Employment Opportunity Commission.