Given Our Aging Jury Population, How Do You Counter Age Discrimination Claims Brought by Employees Over 50 Years of Age?

Arlene Kline recently spoke on the Age Discrimination in Employment Act (“ADEA”) at the American Conference Institute’s 3rd Annual Forum on Defending and Managing Employment Discrimination Litigation in New York City.  The most common question asked of her was what application the U.S. Supreme Court’s Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) has had on litigating age discrimination cases.

Gross provides a clear distinction between ADEA and Title VII cases.  For age discrimination cases, a plaintiff must now prove “but for” causation.  Age must be the reason for the adverse employment action (termination, refusal to hire, etc.).  It is no longer enough to show that age is a “motivating factor.”  Gross renders inapplicable the mixed-motives analysis under Title VII.  As such, a plaintiff must prove through either direct or circumstantial evidence that “but for” the Plaintiff’s age, discrimination would not have occurred. The McDonnell Douglas burden shifting framework still applies in our 11th Circuit and courts have continued to utilize same.  Additionally, cases brought under the Florida Civil Rights Act for age discrimination apply the same standard as under the ADEA.