In a previous blog I wrote about the United States Supreme Court ruling that employees filing age discrimination cases under the Federal Age Discrimination in Employment Act (ADEA) must now show that age was the determinative factor in deciding to discharge the employee. The Supreme Court in Gross v. FBL Financial Services, held that an employee must prove their age "was the "but-for' cause of the challenged adverse employment action."
It looks like this standard has the potential of being reversed by legislation. Sen. Patrick Leahy, D-Vt., said he was troubled by the decision. In addition, Rep. George Miller, D-Calif., the chairman of the House Education and Labor Committee, said in July that he will hold a hearing to determine how the Supreme Court employment law decision impacts workers' protections against age discrimination and other forms of workplace discrimination.
I recently conducted a Westlaw search to see if there are any New Jersey employment law decisions which interpret the new standard. As of posting this blog I could not find a single case that applied the standard to New Jersey's employment laws. It is, of course, only a matter of time before a New Jersey employment lawyer tries to persuade the New Jersey courts to apply the new federal standard to New Jersey's Law Against Discrimination. Until such time, employment lawyers will have to track Congress' action on reversing this standard through legislation.
