A federal court just made it hecka-hard to prove age discrimination at work. But, did it go too far?

The U.S. Equal Employment Opportunity Commission, AARP, and National Employment Lawyers Association think so.

So, let’s discuss.

Sixth Circuit: Age bias means age must be the sole reason for an employment decision.

About a month ago, the Sixth Circuit Court of Appeals issued this opinion in a case involving a bank employee who claimed that her former employer fired her because of her age in violation of the Age Discrimination in Employment Act.

Indeed, the ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”

Now, the facts of this case don’t really matter for this post. Our focus here will be on those two words in the ADEA: “because of.” That is, the appellate court concluded that “because of” in the ADEA means that a plaintiff must prove that her age was the sole reason that the defendant took some sort of adverse employment action against her. In the court’s words, a plaintiff “must show that age was the reason why [she was] terminated, not that age was one of multiple reasons.” (my emphasis)

Or, as the court put it another way, “either a termination is motivated by age, or it wasn’t.”

Applying this “sole cause” test, a three-judge panel from the Sixth Circuit concluded that the plaintiff was unable to prove that her age motivated the defendant to fire her.

Did the Sixth Circuit unfairly raise the bar too high?

In 2008, the Supreme Court in Gross v. FBL Financial Services concluded that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action.

Got that? “Because of” and “but for” mean the same thing. Let’s use a sports analogy to explain.

Why did the Tampa Bay Buccaneers win the Super Bowl?

Tom Brady completed 21-of-29 passing for 201 yards and three touchdowns. He was the game MVP. But, how about that Buccaneers defense? Tampa Bay Defensive Coordinator Todd Bowles masterminded a heckuva game plan, holding the Chiefs’ high-powered offense to zero touchdowns and just three field goals.

Did the Bucs win Super Bowl LV because of Tom Brady? Or would the Chiefs have hoisted the Lombardi trophy “but for” the Bucs defense? Which was the motivating factor?

(Hold that thought for now).

The EEOC (here) and AARP/NELA (here) have since made a similar argument in an attempt to convince the entire Sixth Circuit to revisit and overrule the three-judge panel’s decision. These groups argue that age must have “a determinative influence on the outcome,” but need not be the only reason why an employer took an adverse employment action.

The amici cite the Supreme Court’s recent decision in Bostock v. Clayton County. Bostock is a Title VII case; it has nothing to do with age discrimination. However, the Supreme Court did address whether Title VII’s language prohibiting workplace discrimination “because of” sex requires plaintiffs to show that sex was the sole cause of an employment action. In discussing this standard, the Bostock Court noted that “[o]ften, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision.”

So, why did Tampa win the Super Bowl? Maybe, it was “because of” both Tom Brady and the Bucs Defense. The “sole factor” test wouldn’t apply.

And “sole factor” doesn’t seem to apply to ADEA cases either. Indeed the Sixth Circuit is the only federal appellate court to have concluded as much.

Employer takeaways.

The “sole factor” test sets a really high bar for plaintiffs to eclipse to prove age discrimination. Still, the “but-for” test is no walk in the park for a plaintiff.

As the Sixth Circuit has said previously, “[i]n practice, a plaintiff will rarely discover objective evidence of her employer’s state of mind or internal motivations that would satisfy this extremely heavy burden. The plaintiff must instead resort to conjectural inquiry of the employer’s thoughts and purposes, which the employer can simply and succinctly reject by offering a myriad of other subjective reasons for her termination.”

But, win or lose, litigation is costly. So, don’t give an employee any reason to believe that age factored into your decisionmaking in any way.