Since the Supreme Court’s Gross decision, a federal ADEA plaintiff has a higher burden to prove discrimination – she must establish that “but-for” unlawful discrimination, the employer would not have taken the adverse action, such as firing her. The former “mixed motive” analysis used in ADEA discrimination claims became unavailable to ADEA plaintiffs under Gross.  On June 16, 2010, we wrote a long piece describing how Gross changed the existing law, and noted that lawmakers were trying to pass a law overturning Gross.  It never happened.

Under New York State law, although it has not been determined whether the more-liberal “mixed motive” analysis also applies to discrimination claims pursuant to the New York State Human Rights Law, it has been held that the “but-for” standard does not apply to claims of discrimination brought under the broad New York City Human Rights Law (“CHRL”). 

Under the CHRL, a plaintiff seeking to prove age discrimination “need only prove by a preponderance of the evidence that age was a ‘motivating factor’” in the employer’s decision. Weiss v. JPMorgan Chase & Co., 2010 WL 114248 (S.D.N.Y. Jan. 13, 2010).  Relying upon the New York City Local Civil Rights Restoration Act of 2005 (Local Law No. 85)  Weiss explicitly rejected the "but-for" causation standard of Gross, and affirmatively adopted the continued interpretation of the CHRL’s “because of” language as requiring a plaintiff to prove only that age was a motivating factor. 

Senators — from both parties — are once again introducing a bill to overturn Gross.  Senate Bill 2189, known as the “Protecting Older Workers Against Discrimination Act,” would re-establish the “mixed motive” analysis for ADEA claims.

We will, as we said two years ago, keep you posted.