As we predicted, Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, has announced that he intends to hold a hearing regarding the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, which was issued on June 18.  In Gross, the Court held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. An employer does not have to prove that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the Court decided, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.

Although a positive ruling for employers, Miller criticized this decision in a press release, stating: “The Supreme Court’s ruling will make it even more difficult for workers to stand up for their basic rights in the workplace. A narrow majority of the Supreme Court has once again overturned decades of precedent and congressional intent and sided with powerful corporate interests on a workplace discrimination case.” He further warned that “[l]ike with the Lilly Ledbetter case, Congress may be forced to clarify the law’s intent so we can prevent the damage this decision will have on workers’ civil rights.” The Lilly Ledbetter Fair Pay Act – which was signed into law in January – expressly overturned the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. by extending the time period in which employees can assert pay discrimination claims. Therefore, expect the introduction of legislation aiming to amend the ADEA to effectively nullify the Gross opinion, and make it easier for a plaintiff to bring successful disparate impact age discrimination claims against employers.