One of the most difficult aspects of any civil age discrimination lawsuit is proving that the employer acted in a discriminatory manner against a current or prospective employee. In 2010, the Equal Employment Opportunity Commission reported that there was a 17% increase in age discrimination claims since the beginning of the 2007 recession. Under current case law and Supreme Court precedent, it is particularly difficult to reign triumphant against an employer based on age discrimination- but not impossible.
In 2009, the U.S. Supreme Court rendered a decision which made it more difficult for employee-plaintiffs to prevail in an age discrimination suit against an employer. In Gross v. FBL Financial Services, the plaintiff alleged that his employer, FLB Financial Services, demoted him in violation of the Age Discrimination in Employment Act of 1967 (ADEA). The Supreme Court held that it is the plaintiff-employee’s burden to prove that but for his age, the adverse employment action would not have taken place. In other words, Gross’ age was the sole factor weighed by FBL Financial Services when it demoted him. This language raised the threshold standard for recovery by eliminating the previous test which required that age was a “motivating factor” in the decision.
This holding makes proving age discrimination particularly difficult as plaintiffs are required to present evidence of the employer’s decision-making process before the adverse employment decision- a requirement virtually impossible to meet. Most employers consider many factors before making any type of decision, adverse or not, and most are not documented or recorded in any way. As such, this holding tends to adversely affect the effectiveness of the ADEA and makes age discrimination a near unattainable cause of action.