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A plaintiff cannot bring a “mixed-motive” disparate-treatment claim under the Age Discrimination in Employment Act, the U.S. Supreme Court has ruled.

Instead, the plaintiff must prove by a preponderance of the evidence that age was the but-for cause of an adverse employment action.

Furthermore, the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was a motivating factor in that decision, the Court held.

The plaintiff sued his employer under the ADEA, claiming that he was demoted and given a lower salary grade because he was 54. Most of his duties were transferred to another employee in her early forties, he claimed.

A jury found in the plaintiff’s favor and awarded him $46,945 in lost compensation.

The employer’s motion to overturn the verdict was denied by the trial court.

The Supreme Court agreed to hear the case.

In an opinion authored by Justice Clarence Thomas, the Court rejected the plaintiff’s argument that ADEA claims should be subject to the same burden-shifting scheme as Title VII claims.

Unlike the ADEA, Thomas wrote, Title VII was amended by Congress to allow discrimination claims where bias was “a motivating factor” for an adverse employment decision.

“This Court has never held that this burden-shifting framework applies to ADEA claims,” Thomas wrote. “And, we decline to do so now.”

As for what evidence the plaintiff must put forth, “the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.”

Justices John Paul Stevens and Stephen Breyer filed dissenting opinions that were joined by Justices Ruth Bader Ginsburg ad David Souter.

U.S. Supreme Court. Gross v. FBL Financial Services, No. 08-441. June 18, 2009. Lawyers USA No. 993-881. Click here to read the full text of this opinion.

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