In a 5/4 decision that announced yesterday, the U.S. Supreme Court restricted the rights of employees to sue their employer under the Age Discrimination in Employment Act (ADEA). The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.
The Supreme Court ruling makes is much more difficult (if not almost impossible) for an employee to prove their case under the ADEA. Justice Clarence Thomas, writing for the majority stated: “a worker has to prove that age was the key factor in an employment decision, even if there is some evidence that age played a role. In some other discrimination lawsuits, the burden of proof shifts to the employer once a worker shows there is some reason to believe a decision was made for improper reasons.”
He went on to write: “”We hold that 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 the decision.”
Chief Justice Roberts and Justices Scalia, Kennedy and Alito joined Thomas’ opinion, while Justices Breyer, Ginsburg and Souter joined Stevens’ dissent.