Senators Introduce Bill To Overturn Gross v. FBL ADEA Decision

Back in June of 2009, the Supreme Court issued a decision in Gross v. FBL Financial Inc. that many observers felt would make it harder for plaintiffs to prevail on age discrimination claims. Gross dealt with technical, burden of proof issues. Most importantly, the decision provided that: (2) a plaintiff who sues under the Age Discrimination in Employment Act ("ADEA") must prove that he/she was fired "because of" age, i.e. that age was the "but for" reason for the termination; and, (2) the plaintiff always has the burden of proof in an ADEA case - the burden never shifts to the defendant to show that it would have made the same decision absent any consideration of the plaintiff's age. This framework differs from Title VII, which requires that a plaintiff show only that a protected characteristic (race, sex, etc...) was "a motivating factor". If the plaintiff in a Title VII case makes that showing, the burden then shifts to the defendant to justify its decision.

When Gross came down, there was talk of Congress passing legislation to overturn it, much the same way it acted to overturn the Eleventh Circuit's Lily Ledbetter decision. Many may recall that President Obama made Ledbetter a big campaign issue in 2008. But, so far Congress has done nothing on Gross. But, just this week three senators (Harkin, Grassley, and Leahy) introduced a bill that would overturn Gross, and make the burden of proof for ADEA cases the same as the burden for Title VII cases.

My question is, why now? At least in my experience, the Gross decision has had a relatively minor practical effect on ADEA litigation. It has affected the ADEA jury instructions, but little else. On the whole, it has not made it easier for defendants to get age discrimination cases dismissed (via summary judgment or any other avenue) before trial. And, any good plaintiff's attorney would probably like their chances in an age discrimination jury trial, regardless of what technical burden of proof language is contained in...