Title VII prohibits an employer from discriminating in the terms and conditions of employment “because of” a person’s gender, race, religion, nationality, etc. Similarly, the Age Discrimination in Employment Act of 1967 (“ADEA”), prohibits an employer from discriminating in the terms and conditions of employment “because of” a person’s age. Since 1989, courts generally used the same standards and burdens of proof under both laws.
However, the Supreme Court recently changed the well-settled burden of proof used in so-called “mixed motive” cases (in a case called Gross), by which if an employee showed that discrimination was a “motivating factor” in an adverse employment determination, the employer than had the burden to show that it would have made the same adverse employment determination even if there was no discrimination. The Court, however, ruled that the case only applies to the ADEA, and not to Title VII.
The new “but for” causation standard articulated in Gross is a more difficult test for employees to meet — an employee must now prove that “but for” his age, the employer would not have taken the adverse action. That is, an employee must show that discrimination was not just one “motivating factor” in the employer’s allegedly adverse decision affecting the employee (as it used to be, and still is, under Title VII), but that age must be the reason behind the adverse decision.
The Gross decision was “quite a curve ball,” “wrongheaded,” and “in disregard” of the plain reading of the ADEA, contended some lawmakers and commentators about this pro-employer ruling. In fact, trial courts began extending this new standard to other anti-discrimination laws, such as the ADA, and section 1983, which began to concern legislators.
Accordingly, as part of the continuing dynamic tension between the pro-employer Supreme Court and the more employee-friendly Congress and Administration, a bill was introduced in Congress in October 2009 to overturn Gross. A Justice Department lawyer just testified before Congress in support of this law which would undo the “damage caused by Gross” and put the ADEA back on the same footing as Title VII – that is, it would make it clear that the intent of Congress in passing Title VII and its amendments was to make the Title VII standard of proof apply to the ADEA, and the other anti-discrimination laws, such as the ADA, and section 1983.
We will keep you posted.