Gross v FBL Financial Group, Inc.

Case Updates

The Supreme Court agreed with NCLC that plaintiffs retain the burden to prove that an employer discriminated on the basis of age. Because plaintiffs always retain the burden to show that age was the “but for” cause of an employer’s decision, the Court did not address the question originally presented in this case—whether plaintiffs must present direct evidence to obtain a burden shifting instruction to a jury. The Court held that, unlike Title VII, the ADEA does not provide that a plaintiff may establish age discrimination by showing that age was simply a motivating factor in the employer’s adverse decision.

NCLC urged the Supreme Court to hold that plaintiffs retain the burden to prove that an employer discriminated on the basis of age, except in the unusual circumstance where some, but not all, members of a decision-making body may have acted on discriminatory grounds. It makes little sense for a court to shift the burden of proof to the defendant merely because a plaintiff alleges, without providing any evidence, that a single decision-maker’s non-discriminatory explanation for the challenged employment action is pretextual.