Congress Poised to Overturn Supreme Court’s Recent Case on Age Discrimination

Congress is considering legislation overturning a recent Supreme Court decision holding that plaintiffs asserting claims of age discrimination under the Age Discrimination and Employment Act of 1967 (“ADEA”) must prove that age was the “but for” cause of the challenged adverse employment action.


The Supreme Court’s decision in Gross v. Financial Services modified the standard of proof in age discrimination cases. Prior to Gross, courts had deemed the standard of proof in age discrimination cases to be the same as that which applies in other types of discrimination cases, arising under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). Title VII applies to discrimination on the basis of race, color, religion, sex, and national origin.
Under Title VII, a plaintiff is not required to prove that the discriminatory basis was the “but for” reason for the adverse employment action. Rather, a plaintiff suing under Title VII only need prove that the discriminatory basis was a “motivating” reason for the adverse action, which means that a plaintiff can still prevail under Title VII even if there are other reasons for the adverse action taken.
The Supreme Court in Gross distinguished age discrimination matters from other matters, based upon the different statutory language used in the ADEA, which, according to the Supreme Court, did not appear to support a “motivating factor” standard.
The Protecting Older Workers Against Discrimination Act would overrule Gross by amending the ADEA to state that a plaintiff could prevail under the ADEA by demonstrating that age was a “motivating factor” for the complained of practice.
Although it appears that the amendment will become law, for the time being the decision in Gross should have no effect on age discrimination cases asserted under the New York State and New York City Human Rights Laws. Unlike federal law, New York State’s and New York City’s laws do not distinguish between different types of discrimination. Consequently, although New York state and federal courts look to federal law in interpreting New York State’s and New York City’s anti-discrimination laws, nothing in the New York State and City laws would support the interpretation applied in Gross.
The Protecting Older Workers Against Discrimination Act was introduced in the House and Senate as H.R. 3721/ S. 1756.

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