The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991

The Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc. fundamentally reshaped age discrimination law by establishing a "but-for" causation standard for intentional discrimination claims under the Age Discrimination in Employment Act. The Roberts Court rejected reliance on prior interpretations of Title VII of the Civil Rights Act and asserted its own authority to interpret ADEA language independently. The Civil Rights Act of 1991 had promised to establish a "contributing or motivating cause" standard for Title VII discrimination, easing the burden on plaintiffs compared to the Price Waterhouse v. Hopkins framework. However, Gross effectively reverted age discrimination law to the stricter but-for standard, undermining congressional intent. Harper argues that Congress should respond by enacting parallel causation standards in ADEA and other federal employment statutes including the Americans with Disabilities Act and Family and Medical Leave Act. Lower federal courts have inconsistently applied Gross, limiting its promise of easing proof burdens. The article examines how judicial doctrines in cases like McDonnell Douglas Corp. v. Green and Desert Palace, Inc. v. Costa have further compromised the statute's protective reach for employment discrimination victims.

Topics: Labor & Employment · Civil Rights · Constitutional Law

Keywords: Gross v. FBL Financial Services · Age Discrimination in Employment Act · but-for causation · Civil Rights Act of 1991 · Title VII · Price Waterhouse v. Hopkins · intentional discrimination · disparate treatment