Age Discrimination: Too Old or Too Expensive?

Jack Gross began working for his employer, FBL Financial Group, Inc., in 1971. By 2001, he’d risen to the position of a claims administration director. Yet in 2003, when he was 54 years old, Gross was reassigned to another job, one he considered a demotion. Many of his former job responsibilities were transferred to a newly created position that was given to a younger employee.

Gross sued, claiming age discrimination, a motive prohibited by the Age Discrimination in Employment Act (“ADEA”) Applying the standard established in Price Waterhouse v. Hopkins, a Title VII, gender discrimination case, and extended by the courts to the ADEA and other civil rights laws, a federal court instructed a jury that, if Jack Gross had proved, by a preponderance of the evidence, that his reassignment was a demotion and that age was a motivating factor in that decision, he should prevail.

The court’s directive is known in the trade as a “mixed motive” instruction. According to the standard established in Price Waterhouse, if illegal discrimination is a motive for an adverse action, the complainant – an employee, in the Gross case — is entitled to compensation, even if other motives may also have played a role in the defendant’s actions. Price Waterhouse also provides that, once a plaintiff proves that a defendant had a prohibited motive for an adverse action, the burden of proof shifts to the defendant, who has to prove that he or she would have acted in the same manner, even without that bad intention.

The jury found for Jack Gross. The Court of Appeals sent the case back to the lower court to resolve a technical question about evidence (more on that later). Ultimately, the case reached the Supreme Court: and that is where the real trouble began.

In June 2009, in a 5-4 decision, delivered by Justice Thomas, the [More]

Thanks for commenting!