R. Scott Oswald, Managing Principal of The Employment Law Group, Publishes Article on Age Discrimination in the Wake of Gross

In the wake of the U.S. Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc., plaintiffs brining suit under the Age Discrimination in Employment Act must prove that their age was the determining factor, not the ‘sole cause’ or a ‘motivating factor’ for an adverse employment action.  Despite this change in the causation standard, according to R. Scott Oswald, managing principal of The Employment Law Group, P.C., courts still apply the traditional framework for processing age discrimination claims.

In his recent article for Corporate Counsel on the subject, Mr. Oswald writes that “case upon which Gross will have the least impact are the cases where employees have strong direct evidence of age discrimination against them.” Where such an employee has direct evidence of age discrimination, he does not need to establish a causal connection in order for his claim to prevail.

Additionally, according to Oswald, employers can no longer avoid liability in age discrimination claims merely by asserting that they would have made the “same decision” regarding a questioned personnel action regardless of the employee’s age.

Oswald’s article also included practical advice to in-house counsel for handling age discrimination claims after Gross, including:

• Closely examining potential age discrimination claims and advising their clients how to handle those claims;
• Urging employers not attempt to argue that employees must demonstrate that their age was the “sole cause” of the personnel action taken against them;
• Advising clients to treat reports of age discrimination seriously, as the underlying discrimination itself may not meet the standard set forth in Gross, a subsequent personnel action could lay the proper foundation for a retaliation claim under the ADEA.

The article, “ADEA Claims in the Wake of Gross v. FBL Financial Services, Inc.,” was published in the January 9, 2013 edition of Corporate Counsel.