Gross v. FBL Financial Services, Inc.: time to apply the "but for" burden of proof to FCRA discrimination claims.

• Author: Schwartz, Darren A.
• Position: Labor and Employment Law

The Supreme Court's decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), should significantly impact an employee's burden of proof in establishing a claim of discrimination under the Florida Civil Rights Act (FCRA). In Gross, the Supreme Court held that to establish employer liability for age discrimination under the ADEA in a disparate treatment action, a plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the "but for" cause of the challenged employer action. (1)

In reaching this decision, the Court focused on the text of the ADEA, which provides, in relevant part, that "[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." (2) Applying the ordinary meaning of the phrase "because of," as defined by various dictionaries, the Court concluded that the phrase requires that an employee prove that age was "the reason" (as opposed to merely a "motivating factor," i.e, a factor that plays merely a "part or a role" in the decision) for the challenged employment decision. (3) Indeed, the Court expressly rejected the employee's attempt to utilize the "motivating factor" standard set forth in Title VII. (4)

Importantly, the phrase "because of," which is included in the ADEA, is not the sole standard in Title VII. Although it is included in the original textual language of Title VII, (5) the Civil Rights Act of 1991 amendments expressly established a bifurcated standard of causation. Title VII authorizes discrimination claims in which an improper consideration was a "motivating factor" for an adverse employment decision. (6) Requiring that an employee prove that a protected characteristic was a "motivating factor," as opposed to the "but for" cause of the challenged employer decision, is an easier burden of proof for the employee to meet. (7)

Historically, courts have stated that discrimination claims under the FCRA should be governed by the same legal standards applicable to Title VII claims because the FCRA is patterned after Title VII. (8) Likewise, courts have indicated that claims for disability discrimination under the FCRA should be governed by the same legal standards applicable to the ADA. (9) Courts also have recognized that age discrimination claims asserted under the FCRA should be analyzed...