Employment Law Chronicle for Virginia & the District of Columbia

Employment discrimination based on age popped up on my radar screen because of a media inquiry I received yesterday resulting from my blog post on the Supreme Court's recent decision in Gross v. FBL, and a Legal Times report this morning about an age discrimination case filed in the District of Columbia against a well-known law firm.

While the best defense against employment discrimination cases is to ensure that employment-related decisions are based on business reasons free of discriminatory bias, I thought it would be useful to refer readers to a previous post about layoffs, reductions and employee terminations.

In Gross v. FBL Financial Services, Inc. (Gross), an important 5-4 employment law decision, the Supreme Court of the United States held that a "mixed-motive" jury instruction is "never proper" in a suit brought under the Age Discrimination in Employment Act (ADEA). A "mixed-motive" case exists where the employee presents evidence that the employer's adverse decision was motivated, in part, by unlawful discrimination even if the employer was motivated by other, lawful reasons.

In analogous Title VII cases, where an employee presents direct evidence that the employer's adverse decision was motivated in part by unlawful employment discrimination (because of race, sex, religion, national origin, or color), a burden-shifting mechanism kicks in. Instead of the norm where the burden of persuasion rests with the employee, the jury in a Title VII mixed-motive case is instructed that the employer bears the burden of persuasion to establish that it would have made the same adverse decision absent the alleged unlawful discrimination.

Based on the majority's view of differences in the statutory language of Title VII and the ADEA, the Court refused to apply Title VII's burden-shifting mechanism to ADEA claims. Under Gross, regardless of whether an employee presents direct (or other) evidence that age was a motivating factor in the employer's adverse decision, the employee always retains the burden of persuasion to establish "but-for" causation, i.e., that age discrimination was, in fact, the reason for the adverse decision. As a practical matter, Gross makes age discrimination claims, which were already difficult for employee's to establish because of the comparatively high "but-for' causation standard, ever more difficult from the employee's perspective.

Held: Vacated and remanded, THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined.

As a courtesy to employment lawyers and employers, The Employment Law Chronicle provides links to the text of key Federal, Virginia, and District of Columbia labor and employment laws published on government sites.

The DC Human Rights Act prohibits employment discrimination on the basis of race, color, religion, national origin. sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation.

As a courtesy to employers and employment lawyers, The Employment Law Chronicle provides links to the text of key Federal, Virginia, and District of Columbia labor and employment laws published on public sites.

The Virginia Human Rights Act prohibits discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability.