CHANGES IN THE APPLICATION OF ADEA HAS IMPLICATIONS FOR SCHOOL DISTRICTS, BUT THOSE CHANGES MIGHT NOT LAST LONG

Next, in matter not directly looking at schools, the Court has changed the analysis in age discrimination cases under the ADEA in Gross v. FBL Financial Services, Inc.  Prior to Gross, as with other discrimination claims, claims under the ADEA were sometimes approached with a burden shifting analysis.  Under this approach once an employee who was subject to an adverse employment action taken established that age was at least part of the reason for the decision, the burden then shifted to the employer to show that the same decision would have been made irrespective of the employee’s age. In Gross the Court rejected that notion and found that the burden is always on the employer to establish that the adverse action was taken against them on the basis of age.

This decision will have an effect on school districts in that in defending against age discrimination cases, the burden will always be on the employee. It is not clear how long this decision will remain in effect as it is possible that Congress may step in and overrule the decision by amending the ADEA, as was done with the Ledbetter case in the area of equal pay.
 

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