R. Scott Oswald, a managing principal at The Employment Law Group, weighs in on legal developments affecting plaintiffs' attorneys who represent employees in Age Discrimination in Employment Act litigation.

Bloomberg BNA spoke with Oswald about the Equal Employment Opportunity Commission's enforcement of the ADEA and the Supreme Court's decision in Gross v. FBL Financial Services Inc., which held that "but-for" causation must be shown to prove discrimination under the ADEA.

"The Gross decision does not, in any way, mean the death knell of the ADEA," said Oswald, who litigates employment-related claims on behalf of employees for the Washington, D.C. law firm. Plaintiffs' lawyers do, however, need to evaluate their circumstantial evidence in a new light Post-Gross, he added.

According to EEOC, it received 23,465 age discrimination charges, which represented 23.5 percent of total charges received, in fiscal year 2011. This was up slightly from 23,264 age bias charges in FY 2010. In FY 2008, the commission hit a record high of 24,582 age discrimination charges.

Bloomberg BNA: Name one or two EEOC cases filed under the ADEA that you are paying close attention to? 

Oswald: There are two cases I am paying close attention to. First, there is EEOC v. Texas Roadhouse, which is pending in the District of Massachusetts's federal court. This case is important, because if the allegations are true, then Texas Roadhouse has incorporated in its business plan the systemic removal of older workers from its workforce in favor of younger workers. This is something that is new and needs to be stopped before it becomes a trend.

In the case, the EEOC alleges that individuals at the highest level of the company made comments during meetings that certain employees were too old to apply for certain positions, and that the company had younger people who could grow with the organization.

The second case is EEOC v. American Samoa Government. The EEOC claimed that the government sanctioned a campaign to remove a class of older workers in order to maintain a younger workforce. This case is important because, if the allegations are indeed borne out, then what we have here is government-sanctioned discrimination, which is inconsistent with our current federal anti-discrimination laws.

Bloomberg BNA: How do you see stereotypes about older workers reflected in litigation alleging age discrimination in the workplace?

Oswald: Employers have become savvier in refraining from articulating their discriminatory bias directly at certain protected groups. Yet for some reasons, employers continue to brazenly and openly express a dissatisfaction and displeasure with older workers. A good example of this is a recent case that EEOC settled with the town of Elkton, Maryland.

The allegations in the complaint said town officials made overt discriminatory comments about older employees, including one official openly discussing a worker's age and suggesting that he be replaced with a much younger worker.

The official noted that the older employee was "no young chick," according to the EEOC. We see these types of comments frequently in cases of age discrimination. In an age-discrimination context, there tends to be more direct evidence of discrimination, compared to other forms of discrimination.

Bloomberg BNA: Are there any issues or topics on age bias in the workplace that are floating under the radar, but might gain traction in the next couple of years?

Oswald: There is the impact of the Supreme Court ruling in Gross vs. FBL Financial Services. The high court articulated the standard of proof a plaintiff must demonstrate on causation in order to withstand a motion for summary judgment and prevail ultimately at trial.

The court interpreted the requirement in the Title VII statute to read that private sector employees must demonstrate that the employer's decision to take the adverse action was because of their age. They have to establish that age was a "but-for" cause of disparate treatment.

The next chapter is how the decision impacts the federal courts' view of causation under other statutes. Title VII is clear. The motivating factor provision within the statute itself, as part of the 1991 amendments, clearly sets out that a motivating factor could be enough. It can be in whole or in part because of an individual's race, gender and national origin or religion.

The real test is in other statutes, such as the Americans with Disabilities Act, Family and Medical Leave Act, the Uniformed Services Employment and Readjustment Assistance Act and others. The courts have split on whether the causation standards established in the Supreme Court's Gross decision apply to other statutes.

Indeed, the Gross decision dealt directly with the ADEA only. Federal court jurisprudence on allowing a motivating factor test to apply to other statutes, such as ADA and FMLA, is appropriate and should remain a good law.

Bloomberg BNA: Any final thoughts on litigating age discrimination cases?  

Oswald: Interpreting causation in the wake of the Gross decision is an emerging area. We are certainly watching very closely how the courts will ultimately interpret the statutory language in ADA and FMLA to determine whether courts will accept the motivating factor standard as the appropriate standard or whether the standard is something different, similarly to what the Supreme Court had articulated in the Gross case as it relates to ADEA.

It is important for practitioners who represent employees to resist the courts, to the extent that they are inclined to interpret other statutes' causation standards consistent with what the Supreme Court has held applies to the ADEA.

Other statutes have different causation language and it's important for lawyers who represent employees to point out the differences between ADEA and other statutes in order to convince the courts not to import the Supreme Court's causation standard into other statutes.

The Gross decision does not, in any way, mean the death knell of the ADEA. Indeed, we have looked at cases rendered since the Gross decision such as Shelley v. Geren in the Ninth Circuit affirming the continued use of the McDonnell Douglas framework, Simmons v. Sykes Enterprises allowing "cat's paw" arguments to continue in ADEA cases, and Ford v. Mabus in the D.C. Circuit where the court held that a more sweeping ban on age discrimination than the statute in Gross applies to federal employees.

We have also looked at certain trends. First, the Gross case has no impact at all on cases in which there is direct evidence of discriminatory intent, because there we have direct evidence, such as the comments we have discussed in this interview, that is going to meet squarely with the Supreme Court's test that the employee put forward evidence that the reason for his or her termination was because of the individual's age. An employee who shows direct evidence is going to be able to survive summary judgment and proceed to trial.

Secondly, it is important for plaintiffs' lawyers to look at their circumstantial evidence cases in the wake of the Gross ruling in a different way. On the employee side, we have to stress both the quality of the evidence, such as age bias comments, and the quantity of evidence in order to convince courts that age bias was in fact motivating an employer. Employee lawyers are no longer going to be able to rely on statistics alone. I think that is very clear in the wake of the Gross decision.

There is going to be the need for more evidence to demonstrate causation. Things like pre-text evidence. Plaintiffs' attorneys will have to show evidence that an employer has deviated from its own protocols in taking action against an employee, such as treating other employees differently from the older worker.

This kind of evidence must be looked at in the aggregate and must be presented in the aggregate in order for employee lawyers to meet their burden in the wake of the Gross ruling. It can be met, but we just have to look at our evidence in a different way in cases in which we are proceeding under the ADEA in a circumstantial evidence model.

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