Reading Between the Lines: The Supreme Court’s Textual Analysis of the ADEA in Gross v. FBL Financial Services, Inc.

Meghan C. Cooper

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Since the passing of the Age Discrimination in Employment Act (“ADEA”) in 1967, it has been illegal for employers to discriminate against their employees based on age. However, such discrimination has remained pervasive. As is the case in most economic downturns, older workers have been faring the worst in this plummeting economy.

At the height of this increase in workplace age‐discrimination claims, the Supreme Court decided a case that will inevitably affect older workers seeking relief for age discrimination. The Court held in Gross v. FBL Financial Services, Inc. that a plaintiff alleging a violation of the ADEA must prove, by a preponderance of the evidence, that age was the “but‐for” cause of an alleged illegal employment action. This Comment argues that, in so holding, the Court overturned decades of precedent, engaged in judicial activism by deciding on this issue, and created an illogical and unduly burdensome evidentiary standard for plaintiffs alleging age discrimination in the workplace. Accordingly, this Comment contends that the Court should have applied its established precedent from Price Waterhouse v. Hopkins and held that a plaintiff alleging a violation of the ADEA bears only the burden of proving that age was a motivating factor in an employment decision to impart the burden on the defendant, as an affirmative defense, to prove the same employment decision would have been made despite any consideration of age.

45 New Eng. L. Rev. 753