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In Gross v. FBL Fin. Servs., 129 S. Ct. 2343 (U.S. June 18, 2009) the United States Supreme Court addressed what for lawyers was a critical question on the standards of proof for litigation under the Age Discrimination in Employment Act. Drawing a distinction between age claims and theories of discrimination under Title VII, the Court held, 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 that decision. In contrast, plaintiffs in a Title VII case can have at least partial success – and recover attorneys’ fees – if they show that considerations of race (for example) played even a slight role in the decision-making process under review.
Thursday, June 18, 2009
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