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U.S. Master™ Wage-Hour Guide, 2009 Edition 
Presents a first approach to the broad and complex controls under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and other statutes regulating employee wages and hours.
Declining to import the mixed-motives burden shifting rubric applied under Title VII of the Civil Rights Act of 1964, a divided Supreme Court has ruled that a plaintiff claiming disparate treatment under the Age Discrimination in Employment Act of 1967 (ADEA) must establish by preponderance of evidence that age was the "'but-for' cause" of the adverse employment action challenged (Gross v FBL Fin Servs, Inc, USSCt, Dkt 08-441. Decided June 18, 2009).
Even when a plaintiff has produced some evidence that age was one motivating factor in an employer's decision, the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of age, held the Court. Justice Stevens, joined by Justices Souter, Ginsburg and Breyer, dissented. Writing separately, Justice Breyer also dissented and was joined by Justices Souter and Ginsburg.
The Eighth Circuit Court of Appeals had reversed a jury verdict in favor of a demoted 54-year-old employee alleging disparate treatment under the ADEA because the verdict was obtained under a flawed mixed-motives jury instruction. The High Court was presented with the question of whether a plaintiff must "present direct evidence of discrimination in order to obtain a mixed-motives instruction in a non-Title VII discrimination case." However, the Court reasoned that prior to reaching that question, it was required to determine whether the burden of persuasion ever shifts to the party defending against a purported mixed-motives discrimination claim brought under the ADEA. The Court concluded that it does not. "Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor," wrote the Court. Accordingly, the High Court vacated the Eighth Circuit's judgment and remanded the matter for further proceedings.
For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.
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