The Age Discrimination in Employment Act (“ADEA”) makes it unlawful for employers to discriminate against an employee “because of” the employee’s age. In Gross v. FBL Financial Services, decided on June 18, 2009, the United States Supreme Court, in a 5-4 decision, held that a plaintiff alleging age discrimination under the ADEA must thus prove that age was the cause of the challenged adverse employment action. The Supreme Court rejected the notion that a plaintiff could establish discrimination by showing age was a motivating factor in the decision. The Supreme Court further rejected the notion that the burden of persuasion shifts to the employer in cases involving mixed motives for the employment decision.

In Title VII claims, by contrast, a plaintiff need only establish that race, religion, sex, or national origin was a “motivating factor” in the employment decision. If a plaintiff has done so, she will prevail unless the employer then establishes that the adverse action would have been taken regardless of the race, religion, sex, or national origin of the employee.

The Gross majority based its decision on differences in the statutory language of the ADEA and Title VII, the latter of which expressly authorizes discrimination claims where an improper consideration is “a motivating factor” for the adverse employment decision. The ADEA contains no such language.

Gross thus puts federal age discrimination claims on a different footing than other employment discrimination claims, at least concerning the burdens of proof and persuasion. As the difference is based solely on the Supreme Court majority’s interpretation respecting the differences in the statutory provisions, Congress can, if it chooses, put age discrimination claims on an equal footing with other employment discrimination claims by amending the ADEA to comport with Title VII.