A New Standard for Age Discrimination Cases?

July 29, 2009 Published Work
Connecticut Law Tribune, July 27, 2009, Vol. 35, No. 30

On June 18, Justice Clarence Thomas, writing for the majority of a sharply divided Supreme Court in Gross v. FBL Financial Services, Inc., relied on the dictionary -- rather than two decades of Supreme Court precedent -- to reject the availability of "mixed motive" claims under the Age Discrmination in Employment Act (ADEA).
Although widely trumpeted as a decision favorable to employers, the court's reasoning in Gross is highly questionable and casts a cloud of uncertainty over Connecticut's state employment discrimination laws. It is also likely to generate a legislative response from Congress.
Understanding the court's recent decision requires some history. In 1964, Congress enacted Title VII of the Civil Rights Act, which outlaws employment discrimination "because of" certain protected characteristics -- sex, race, color, national origin, and religion. Just three years later, Congress passed the ADEA, which as its title suggests, prohibits employment discrimination "because of" age. Given the textual similarities between the two laws, federal courts historically construed the ADEA's proof requirements consistent with those of Title VII, in accordance with the burden-shifting paradigm of the Supreme Court's 1973 decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792.