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February Newsletter

     With every passing year, it appears employers are facing more and more liability for discrimination in the work place.  The 2008 amendments to the American's with Disability Act is an example of Congress making it easier for employees to successfully sue their employer. While every employer should strive for a workplace free from discrimination, disgruntled employees have been known to abuse the system by filing frivolous claims, thus costing employers thousands of dollars.  But finally, there is some good news for employers.  In late 2009, the United States Supreme Court issued its holding in Gross v. FBL Financial Services, Inc.  129 S.Ct. 2343 (U.S., 2009) resulting in employees finding it more difficult to succeed on an Age Discrimination Claim.


The Old Situation

Prior to the decision in Gross, it was common for Courts to give a mixed-motive jury instruction in age discrimination cases wherein the jury would be instructed that it should find for the Employee if age was a motivating factor in the negative employment action, and that age was considered a motivating factor if it played a part in the negative employment action.

The Ruling

Gross changed everything.  In Gross, the United States Supreme Court found that unlike Title VII of the Civil Rights Act, the ADEA has specific language that requires the "but-for" analysis even in a mixed motive case.

            As a result of this statutory interpretation, the U.S. Supreme Court held:

[T]hat a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. 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 one motivating factor in that decision.

Gross v. FBL Financial Services, Inc.  129 S.Ct. 2343, 2352 (U.S.,2009) [Emphasis Added]

            In sum, Gross states that the burden of persuasion never shifts to the employer. Instead, the Employee must prove the negative employment action was taken solely because of the employee's age.  Of course, the Employer still has the chance to present evidence disproving the employee's contention that age was the "but-for" cause of the discrimination.

This is good news for employers.  The holding in Gross means that it will be easier to have frivolous age discrimination claims dismissed both at the administrative and court level.  However, it should be noted that the holding in Gross only applies to age discrimination claims.  As always, employers can and should take simple and reasonable steps to reduce the amount of potential liability resulting from discrimination in the workplace.

If you would like more information about creating an estate plan that fits your needs, please contact Williams & Hutchinson at (479) 464-4944.

Williams & Hutchinson
In This Issue: Finally, Some Good News for Employers
The Old Situation
The Ruling
Closing Comments
If you would like more information about creating an estate plan that fits your needs, please contact Williams & Hutchinson at (479) 464-4944 or visit our website at www.wh-lawfirm.com

Williams & Hutchinson, 2010.