The United State Supreme Court recently issued an opinion in Gross v. FBL Financial Services, Inc., No. 08-441 (U.S. June 18, 2009), an age discrimination case under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et. seq. The decision dramatically changes the landscape of age discrimination claims in employment, and makes age discrimination claims more difficult for plaintiffs to prove.

The Supreme Court’s 5-4 decision addressed the basic standard of causation required to prove a successful ADEA claim. Previously, courts had relied heavily on the analysis in Title VII cases to merely require that age be a motivating factor in the adverse employment decision. The Court inGross rejected the reliance on Title VII cases, because the ADEA does not use the “a motivating factor” language, but instead uses the phrase “because of” the individual’s age. The Court interpreted the “because of” language to require “but for” causation. As a practical matter, a plaintiff can no longer succeed by showing that age played some role in the employer’s decision-making process, but must now show that age was a determining factor.

The Supreme Court’s analysis in Gross, while limited to the language of the ADEA, may have an impact on other employment statutes. It remains to be seen how courts interpret the “because of” language in the Americans with Disabilities Act or similar language in state discrimination laws. Further, because Gross represents such a significant change to the way the ADEA will be applied going forward, there is a reasonable chance that Congress will step in at some point in the future to change or clarify the language in the statute.

If you have questions on this issue or any employment law issues, please contact an employment law attorney at Blethen, Gage & Krause, PLLP.