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U.S. Supreme Court majority raises the bar for proving age discrimination

Historically, the U.S. Supreme Court has interpreted various legislation protecting against discrimination in accordance with the original interpretation of Title VII of the 1964 Civil Rights Act.  Under that interpretation, if discrimination was one "motivating factor" in an employer's decision-making, the employer could be held responsible for disparate treatment.  Justice Clarence Thomas wrote for a 5-4 majority of the Court last week, however, rejecting this standard of causation and holding that to be actionable, age discrimination by an employer must be the "decisive factor" behind an adverse job action.

Commentators expressed surprise that the current court majority would interpret the Age Discrimination in Employment Act (the ADEA) so dramatically different from the manner in which it has historically treated civil rights discrimination under Title VII.   The current "but-for" standard, eliminating "mixed motive" claims, was expressly rejected in the 1989 Price Waterhouse v. Hopkins decision and by Congress in 1991.  The new, higher standard for proving age discrimination claims will make it much harder for employees to prove that employment discrimination has occurred, and give greater defensive impact to employer claims of ulterior motive.

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