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In April 2004, Jack Gross sued FBL Financial Services, Inc. (FBL) under the Age Discrimination in Employment Act (ADEA) alleging he was demoted because of his age. A federal district court in Iowa found in his favor and awarded him $46, 945.

On appeal, the United States Court of Appeals for the Eighth Circuit reversed and ordered a new trial. The court held that the jury instruction in Mr. Gross' case was improper. It reasoned that since Mr. Gross never submitted direct evidence that age was a motivating factor in his demotion, he was not entitled to a jury instruction that put the burden of persuasion upon FBL to show that it would have demoted him regardless of his age.

Does a plaintiff need to submit direct evidence of discrimination in a suit filed under the ADEA in order to shift the burden of persuasion to the defendant?

No. The Supreme Court held that in an ADEA discrimination claim the burden of persuasion does not shift to the defendant employer to prove that it would have taken the action regardless of the plaintiff's age, even when evidence is introduced showing that age was one motivating factor in its decision. Rather, the Court held that the plaintiff must prove by a "preponderance of the evidence" that age was the "but-for" cause of the defendant's action. With Justice Clarence Thomas writing for the majority and joined by Chief Justice John G. Roberts, and Justices Antonin G. Scalia, Anthony M. Kennedy, and Samuel A. Alito, the Court reasoned from the ADEA's plain text and Congressional intent that the Title VII burden shifting framework did not apply to the ADEA.

Justice John Paul Stevens dissented and was joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer. He argued that both the Court and Congress had previously rejected the "but for" standard of causation in ADEA claims and then criticized the majority for "unnecessary lawmaking." Justice Breyer also wrote a separate dissenting opinion and was joined by Justices Souter and Ginsburg. He criticized the majority for adopting a standard that was inappropriate for determining mental processes like motive, a necessary element in a ADEA discrimination claim.