6/26/2009

A recent decision from the U.S. Supreme Court clarifies that employees suing for age bias under the federal Age Discrimination in Employment Act (ADEA) must show that age bias was the motivating reason for the action taken against the employee.

Under both California law and Title VII of the federal Civil Rights Act of 1964, an employee who alleges that he or she was treated differently than other employees can prove a discrimination claim by showing that the employer's bias was either (1) the actual motive for taking action against an employee, or (2) was one of the motivations for taking the disputed action. This second category is referred to as "mixed-motive" cases.

Distinguishing between the language of Title VII and the ADEA, the Supreme Court ruled in Gross v. FPL Financial that the ADEA requires employees to show that age bias was the sole reason for taking an adverse action against an employee. In contrast, Congress amended Title VII (covering bias claims involving race, national origin, gender, and religion) to specifically allow mixed-motive cases. Therefore, this ruling applies only to age bias cases.

This decision represents a significant victory for employers who are sued under the federal ADEA, setting a high standard of proof for employees. However, current California law under the Fair Employment and Housing Act (FEHA) generally permits mixed-motive cases. Because the Supreme Court's decision in this case turned on the specific statutory language of the ADEA, it's unlikely to have an effect on cases brought under California law.

We'll have more on this case in an upcoming issue of California Employer Advisor.

Are You Taking the Right Steps to Prevent Age Bias Lawsuits?

In this weakened economy, job security is on everyone's mind. Your older workers are probably wondering whether they'll be first on the chopping block if jobs need to be cut—they often make the most money, and they're concerned about stereotypes that flag them as less adaptable and capable of learning new technologies. Of course, if you've already had to let workers go, some of these folks almost certainly believe their age was a factor.

Age bias claims represent one of the fastest growing types of complaints filed with the federal Equal Employment Opportunity Commission (EEOC), and the agency has made it clear that it intends to take action against employers who terminate, or fail to hire, on the basis of age. Don't wait for a letter from the EEOC, or California's Department of Fair Employment and Housing (DFEH), alerting you that your organization is being investigated for alleged age bias violations.

Join us on July 20 for an in-depth 90-minute audio conference all about how to hire, train, evaluate, promote, and compensate and terminate workers without violating the age bias laws. Our speaker—an experienced California labor and employment attorney—will also explain the crucial analysis you should use so that all of your employment decisions are age-neutral. You'll learn:

• The state and federal age bias laws that apply to your organization, and what an employee must be able to show to establish a valid age bias claim



• How age bias claims could arise, through layoffs, hiring and promotional decisions, and other employment practices—even if you have no intent to discriminate



• The types of statements made in performance reviews, casual conversation, and job descriptions that could be used as ammunition if an older worker decides to sue you



• What you can and cannot say when describing the type of workers you want to employ, such as stating that you're looking for an "energetic" workforce



• The criteria to use when evaluating which workers should attend intensive training and accelerated advancement programs that could lead to promotions



• What the federal Older Workers Benefit Protection Act requires of you



• Best practices for ensuring that your organization can avoid age bias claims before they make it to the EEOC or DFEH or, even worse, to a judge or jury

Register now »

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