The United States Supreme Court on June 18, 2009, in a 5/4 split decision, in the case of Gross v. FBL Financial Services, Inc., addressed the burden of proof of an employee in a federal age discrimination claim. In trial, who has the burden of proof is important in that a judge or jury deciding a case will consider the facts in light of whether they believe the party proved his case.
Gross filed suit alleging that FBL demoted him in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), which is the federal age discrimination employment law which prohibits an employer from taking an adverse employment action against an employee because of his age. At the close of the trial and over FBL’s objection, the federal trial judge instructed the jury to enter a verdict on behalf of Gross if he had proven by a preponderance of the evidence that he was demoted and his age was a motivating factor in the demotion decision. The judge further informed the jury that age was a motivating factor if it played a part in the demotion. The judge also instructed the jury to return a verdict for FBL if it proved that it would have demoted Gross regardless of age. The jury returned a verdict for Gross and FBL appealed.
In certain federal employment discrimination cases where the employee alleges that gender, race, or religious discrimination played some role in an adverse employment action, the jury instructions provided by the judge in the Gross v. FBL trial would have been standard and proper. However, those cases are under a different federal law; Title VII, not the ADEA.
The Court of Appeals reversed the trial judge’s jury instructions and remanded the case for a new trial. Upon appeal to the US Supreme Court, it agreed with the Court of Appeals in a majority decision. The Court found that an employee bringing an ADEA disparate-treatment claim must prove by a preponderance of the evidence that age was the “but-for” cause for the alleged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age even when the employee produced some evidence that age was one motivating factor in that decision. In other words, the burden of proof remained upon Gross to prove that FBL would not had demoted him, but for his age. That is a tough burden for any employee to meet.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].