Supreme Court makes it harder to prove age discrimination

ByJoan Biskupic, Usa Today
June 18, 2009, 7:36 PM

WASHINGTON -- A bitterly divided Supreme Court enhanced the ability of employers to win age-discrimination lawsuits Thursday as it rejected a $47,000 verdict won by an Iowa man who was demoted at age 54.

The 5-4 decision, controlled by the high court's conservatives, requires workers alleging age discrimination to prove from the start that bias was the crucial factor in a demotion, not just one of possibly many factors leading to it. That standard for the Age Discrimination in Employment Act is tougher than the requirement for workers suing for race or sex bias under Title VII of the 1964 Civil Rights Act.

The four liberal dissenters said the majority reached beyond the limited question in the case. "I disagree not only with the court's interpretation of the statute but also with its decision to engage in unnecessary lawmaking," wrote Justice John Paul Stevens, noting that the court rejected the views of the federal government, which administers the age-bias law.

Jack Gross, who was a claims administration director for FBL Financial Group in its Iowa office, sued when he was reassigned in 2003 and many of his duties given to another employee. Gross alleged that the demotion was based at least in part on his age. FBL said it arose from a corporate restructuring. The case tested what an employee must show in a so-called mixed motive case.

Writing for the majority, Justice Clarence Thomas said the employee bears the full burden in such cases. He said that even when a worker produces some evidence that age was one motivating factor in a job loss, the "burden of persuasion" does not shift to the employer — as it would under Title VII — to show that it would have taken the action regardless of age.

Thomas said Thursday's decision clarifies confusion that arose from a 1989 decision involving Title VII. In that ruling, Price Waterhouse v. Hopkins, the court said when a worker presents evidence that bias was even part of an employer's motivation, it then falls to the employer to show it would have made the same decision in the absence of the bias.

The decision in Gross v. FBL Financial Services, Inc. says that Title VII framework does not carry over to age-bias lawsuits.

Thomas was joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito.

Stevens said the court was rejecting precedent and the intentions of Congress. Joining him were David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The ruling could spur Congress to act. Sen. Patrick Leahy, D-Vt., said it ignored the "common understanding of the statute."

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