Tougher Standards On Age Claims

Howe & Hutton, LTD. in their recent newsletter, reported that in one of the final decisions of the 2008-09 term, the U.S. Supreme Court ruled 5-4 that a plaintiff bringing an age discrimination claim must show that age was the decisive factor — not just one of a number of factors — leading to the employer’s discriminatory action.

This makes it considerably more difficult to win so-called “mixed motive” cases. Justice Thomas, writing for the majority, used the term “but for” to separate age from other factors an employer might have considered. While the Court may have resolved this issue in favor of employers for now, the win may be short-lived. Some legal commentators expect the decision to be quickly overturned by Congress, as it did with another recent decision on discrimination on pay for women when it disagreed with the Court’s ruling.