Age Discrimination in the Workplace: Who Bears the Burden of Proof?
Companies of all shapes and sizes have employees report issues in the workplace. These can range from sexual harassment, to workplace safety, to misuse of company resources. Some of these investigations are straightforward, and some of them not so much. Regardless, companies need to address and resolve a reported issue before it escalates and is out of their hands entirely. In the out-of-hand cases, third parties may need to step in to settle the dispute. Sometimes, that third party ends up being the highest court in the land.
Discrimination in the Workplace
Title VII of the Civil Rights Act of 1964 “prohibits employee discrimination based on race, color, religion, sex, and national origin.” Thus, employees who believe they have been wronged by their employer because of these factors have the right to seek reparations in court. In 2020’s Bostock v. Clayton County, the Supreme Court also held that Title VII prohibits discrimination based on sexual orientation or gender identity, ruling that it is also discrimination “because of sex.” They reasoned that employers discriminate against these employees because they accept certain conduct from employees of one sex (ex: attraction to men) but not from employees of the other.
From the looks of it, discrimination is pretty much covered by Title VII. But one important violation is not protected: age discrimination. Instead, age discrimination in the workplace is covered by the Age Discrimination in Employment Act of 1967 (ADEA). This law prohibits employment discrimination against employees 40 years old or older.
Why is it a big deal that Title VII and the ADEA are separate? Let’s look at an example.
Gross v. FBL Financial Services
In 2004, Jack Gross filed a suit alleging that his employer, FBL Financial Services, demoted him because of his age. At 54 years old, Gross received a reassignment from his original position of claims administration director to claims project coordinator. Many of his job responsibilities transferred to a woman in her early forties under a newly created position – claims administration manager. The woman, Lisa Kneeskern, was previously supervised by Gross.
FBL defended that the reassignment was simply due to corporate restructuring and that Gross’s new position better suited his skills. However, the District Court jury ruled in favor of Gross after FBL was unable to disprove that his reassignment was influenced by his age. The court awarded Gross $46,945 in lost compensation.
Here’s where it gets interesting.
FBL challenged the jury instructions for the case on appeal, arguing that the burden of proof should have been solely on Gross. The Court of Appeals found that Gross needed to present direct evidence to show a specific link between the alleged discrimination and the challenged decision. Only then would the burden of proof shift to the employer.
Title VII cases, which do not cover age discrimination, allow the plaintiff to establish discrimination by showing that their race, color, religion, sex, or national origin was simply a motivating factor. Victims can assert a “mixed-motive” claim – that is, a claim that the motives of the employer were influenced, at least in part, by discrimination.
As the ADEA stands now, there is no language to suggest that mixed-motive claims are valid in age discrimination proceedings. To put it simply, Gross had to prove that the reassignment had occurred only because of his age – a “but-for” cause. No other factors were allowed to be considered in the allegation.
The case was brought to the Supreme Court which sided with the Court of Appeals, ordering that the burden of proof never shifts to the employer, even when the plaintiff produces evidence that age was a motivating factor in the decision. The original ruling was reversed.
POWADA
17 years later, the Gross v. FBL Financial Services case is still ruffling feathers. Many lawmakers believe that ADEA cases should be held to the same standards as Title VII cases, which both confront allegations of discrimination in the workplace. Why, they argue, should age discrimination be any different than discrimination based on race, color, religion, sex, and national origin?
The Protecting Older Workers Against Discrimination Act (POWADA), was first introduced in the 116th Congress in 2020. This law would amend the ADEA to allow plaintiffs to establish discrimination as a motivating factor in the employer’s decision, not the sole factor. Just like in Title VII cases, mixed-motive claims would be allowed. The bill passed the House of Representatives on January 15, 2020, but never passed the Senate.
POWADA was reintroduced to Congress in March 2021 by U.S. Senator Bob Casey (D-PA), Chairman of the Special Committee on Aging, and Senators Chuck Grassley (R-IA), Patrick Leahy (D-VT), and Susan Collins (R-ME).
Senator Leahy proclaimed “No American should face discrimination in the workplace, whether based on age, sex, race, religion, national origin, disability, or otherwise. And our laws must not tolerate any amount of discrimination. No matter whether it is a determinative or contributing factor in an employment decision, discrimination is wrong and should be treated that way.”
Those in support of the bipartisan bill reject the ruling of Gross v. FBL Financial Services and believe POWADA would make it easier for plaintiffs to prove they were victims of age discrimination. If passed, POWADA will change the way age discrimination is confronted in court entirely.
Could This Have All Been Avoided?
Being taken to court by a disgruntled employee is most companies’ worst nightmare. Discrimination allegations can cost time, money, and be a blow to a company’s reputation. However, victims of workplace discrimination have every right to escalate their concerns if they feel their employer isn’t doing anything to confront it.
The best way to prevent such a proceeding is to do all you can to discourage discrimination in the workplace before it even occurs. Creating a culture that encourages open dialogue and takes a firm stance against discrimination will instill trust in your employees that management will do all they can to address their concerns. Listening to your employees by allowing them to report through a hotline or whistleblower system will bring issues to your attention before they become catastrophic. Monitoring and analyzing the trends of reported concerns in your company will help you pinpoint the areas where you may need to step in and make some changes.
You can’t please every employee, but it is worthwhile to do what you can to protect them where it all starts – in the workplace.
The ETHIX360 blog brings you weekly updates on all things human resources and compliance.
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Katie Shivers is the Director of Marketing for ETHIX360. She is responsible for content creation and engagement for all the communities we serve on numerous social media platforms, as well as managing all forms of client communication.
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