By: Tiffanie Benfer, Esq.
Last week’s 5-4 decision in Gross v. FBL Financial Services, authored by conservative Justice Clarence Thomas, took several surprising turns. First, the Court addressed an issue — standard of proof for claims under the Age Discrimination in Employment Act (ADEA) — that was not even raised by the parties. Second, the Court declined to apply settled caselaw and evidence of Congressional intent for other statutes barring discrimination. The end result is an interpretation of the ADEA that makes the burden of proof for older workers bringing federal claims of age discrimination much higher than it is for workers alleging other forms of discrimination.
What does the FBL Financial decision say?
The Court’s decision turns on shifting burdens of proof in age discrimination cases, the kind of topic that makes non-lawyer eyes glaze over. To a large extent, it comes down to the difference between “a” and “the.” Under Title VII (which protects workers from discrimination on the basis of classifications such as race and gender), when there is a case of “mixed motives,” there is a shifting burden of proof, and employees must show that the protected class was a motivating factor. The FBL Financial decision basically takes away the option of arguing mixed motives in an age discrimination case – employees must argue that age was the motivating factor, not just a motivating factor.
What does FBL Financial mean in practice?

At first glance, this is a dream come true opinion for employers. Justice Thomas gave employers far more than they had even asked for. Employers only asked the court to find that employees must show direct evidence of discrimination in mixed motives cases. Instead, the Court went much farther and banned the cases altogether.
Because of game-changing nature of the decision, there is already buzz about a swift and forceful congressional override.
In the meantime, is it all over for plaintiffs? Not by a long shot. Employees can still bring federal age cases without a mixed motive instruction. In other words, plaintiffs will not argue that the employer was motivated by age plus some legitimate basis, but will just argue that age was the motivating factor, plain and simple. Many plaintiffs’ lawyers have already taken this approach, on the theory that it is less confusing to the jury. The Court made clear in a footnote that plaintiffs can still prove their case without “direct” evidence of discrimination – in other words the proofs do not need to include a smoking gun memorandum saying “Let’s fire Joe ‘cause he’s old.”
Second, plaintiffs will rely more on state laws. New Jersey and Pennsylvania both have state laws banning discrimination on the basis of age, and the courts of both states have demonstrated that they will not follow federal case law that is overly limiting.
While the lawyers fight out jury instructions under FBL Financial,it is likely that Congress will be hammering out amendments to the federal law banning discrimination on the basis of age. With the number of older workers who have lost jobs in the economic downturn, interest in this issue by the Democratic Congress may be high.