Cincinnati partner Scott McIntyre authored an article, "Divided Supreme Court Rejects Mixed Motives Framework for ADEA Claims," which was published as the cover story in the August 17, 2009, edition of Bloomberg Law Reports—Labor & Employment.
According to McIntyre: "In its most recent decision on age discrimination, the U.S. Supreme Court held that plaintiffs alleging intentional age discrimination must prove by a preponderance of the evidence that age was the 'but-for' cause of the challenged employment action. In Gross v. FBL Financial Services, Inc., the Court, in a 5-4 opinion by Justice Thomas, clarified that Plaintiffs asserting claims of disparate-treatment under the Age Discrimination in Employment Act ('ADEA') may not prevail based upon proof that age was merely a motivating or substantial factor behind the employment action. Based upon material differences between the text of the ADEA and Title VII, the Court declined to extend the lesser burden of persuasion for alleged mixed-motive claims under Title VII to claims of age discrimination . . . and unlike certain Title VII claims, Gross establishes that the burden of persuasion never shifts to an employer defending claims of intentional age discrimination under federal law."
McIntyre goes on to state that in light of the decision, "a potential legislative attempt to amend the ADEA in response to Gross may be on the horizon. As for lower courts, numerous federal, state and local statutes prohibiting discrimination contain language similar to the text of the ADEA and do not expressly provide for 'mixed-motive claims.' In light of Gross, courts will have the opportunity to opine on whether various other federal and state laws allow for 'mixed motive' claims."
McIntyre's article goes on to provide the factual and procedural background to the case, an explanation of the Supreme Court's analysis, as well as of the dissent opinion, and the implications of the case. McIntyre concludes: "It remains to be seen whether a comparable public groundswell against Gross will form. Ledbetter's impact barred women from bringing certain claims. In contrast, Gross is not a bar to claims, but changes the plaintiff's evidentiary burden for certain claims. Regardless, Gross sets the stage for careful and critical examination of its holding and potential application by the courts, Congress, and the full community of those impacted by the decision."