The Supreme Court Tweaks Burden of Proof for Age Discrimination -- Gross v. FBL Financial Services, Inc.

The U.S. Supreme Court decision in Gross v. FBL Financial Services, Inc. has been hailed by the news media and some commentators as effecting a significant change in the law which makes it "much harder" to prove age discrimination.  The reality, however, is that the decision will have little or no impact in real world cases.

Under the prior rule if a plaintiff submitted direct evidence at trial (such as an admission by a person involved in his termination decision) that his age was a "motivating factor" in selecting him for termination, the burden of proof would then shift to the employer to demonstrate that it would have made the same decision regardless of age.  Gross v. FBL says that the burden should remain with the employee in this situation.

This might sound like a big deal.  But the "mixed motive" issue only arises after an employee has already submitted not only a prima facie case -- but strong "direct evidence" of a discriminatory motive.  At this point, arguing about who bears the ultimate burden of proof is a mostly metaphysical question. 

The jury will either believe discrimination was the real reason for the termination decision, or it won't.  But the burden of proof would only be dispositive in the highly unlikely event that the jury determines that the evidence submitted by both sides is in perfect equipoise.  This is simply not the way real jurors think or act.   

Furthermore, the decision applies only to claims under the federal ADEA and has no application to cases decided under Title VII or California anti-discrimination law.  And, in any event, the adverse publicity will cause Congress to legislatively overule the opinion in short order.  For all of these reasons, employers should take no comfort from Gross v. FBL.  

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