The Supreme Court -- sharply divided 5 justices to 4 -- recently published a controversial ruling in the field of employment discrimination law.  Gross v. FBL Financial Services, Inc. dealt with the Age Discrimination in Employment Act of 1967 (ADEA) which makes it unlawful for an employer to take action against an employee "because of such individual's age".  On June 18, 2009 in Gross, the majority of justices decided that an employee cannot win a claim under the ADEA with proof that age was a factor motivating the employer to take action; the employee must prove that age was the determinative factor.

In other types of employment discrimination cases – cases, for instance, for race or gender discrimination – there is no need to prove that discrimination was the motivating factor.  Employees need only show that discrimination was a factor.  The Supreme Court's decision means that an employer may now take action against an employee based on age as long as other considerations also factor into the decision.

The Gross ruling should not change the way employers conduct their affairs.  Congress may step in and reverse the decision.  A law could be passed permitting age discrimination to be proven with evidence that age was considered.  An employer is also always better off fighting an age discrimination claim where there has in fact not been any age discrimination.

Employees asserting age discrimination claims, on the other hand, will need to alter their behavior.  They are now going to have to charge that age was the reason their employers took action against them; it will not be sufficient for them to claim that age factored into the decision.  The Gross ruling will also make it tougher for employees to prove age discrimination claims.  Employers may now defend the claims by asserting that age was merely a factor taken into consideration; before Gross, on the other hand, any taking of age into consideration was enough to prove age discrimination.