In Gross v. FBL Financial Servs., the U.S. Supreme Court concluded that mixed-motives do not exist in federal age discrimination claims, and for a plaintiff to succeed on an disparate treatment claim under the ADEA, he or she must prove that age was the “but-for” (that is, the only) cause of the challenged adverse employment action.
An open question left in the wake of Gross was whether state courts such as Ohio would follow Gross under parallel state court age discrimination statutes. Thomas v. Columbia Sussex Corp. (Ohio Ct. App. 1/6/11) [pdf] provided our first Ohio answer. It concluded that Gross does not apply under Ohio’s age discrimination statute. While the opinion somewhat muddles its discussion of Gross, the court approved what amounted to a mixed-motive jury instruction given to the jury. Therefore, mixed-motive age claims are alive and well under Ohio age discrimination statute, and the effect of Gross is limited to cases brought under the federal ADEA.
For employers, this opinion is not quite as bad as it seems. Yes, it will likely result in more plaintiffs eschewing a federal venue and filing their age claims under Ohio law, and in Ohio courts with state court juries. Ohio’s age discrimination statute, however, has a short six-month statute of limitations, as compared to 300 days one has to file an age claim with the EEOC to perfect one’s right to file a lawsuit under the federal statute. Because employees have a easier burden of proof under Ohio law, they will have to elect the shortened filing period. Employees who miss the initial six months will have to go the federal route, with its tightened burden of proof under Gross.
For businesses, the advice I gave after Gross holds true regardless of the burden of proof. Employers should meticulously document employees’ performance problems and other disciplinary action. A contemporaneously well-documented personnel file makes it that much more difficult for a plaintiff to prove that age was the motivating reason behind the termination or other adverse action.