Bloomberg Interviews TELG Managing Principal R. Scott Oswald on Age Discrimination Litigation in the Wake of Gross

Posted on December 30, 2012

Bloomberg BNA published a Q&A with R. Scott Oswald, managing principal of The Employment Law Group® on recent developments affecting attorneys who represent employees who have been the victims of age discrimination in the workplace.

In the interview, age discrimination attorney Oswald discussed the Equal Employment Opportunity Commission’s (EEOC) enforcement of the Age Discrimination in Employment Act (ADEA) and the Supreme’s court’s decision in Gross v. FBL Financial Services Inc.

Regarding Gross, which held that “but-for” causation must be demonstrated to prove disparate discrimination under the ADEA, Oswald noted that “the decision does not, in any way, mean the death knell of the ADEA”.  Oswald noted that “the real test is in other statutes, such as the ADA, FMLA, and USERRA…as the courts have split on whether the causation standards established in the Gross decision apply to other statutes.”

According to Oswald, “the Gross decision dealt directly with the ADEA only” and federal case law which permits a motivating factor test to apply to other anti-discrimination statutes such as the ADA and FMLA, “is appropriate and should remain good law.”

Oswald also noted that the Gross case only applies in discrimination cases involving evidence of a discriminatory disparate impact, not in cases in which there is direct evidence of discriminatory intent.  Therefore, employees who “show direct evidence of discrimination will still be able to survive summary judgment and proceed to trial.”

Finally, regarding the use of circumstantial evidence in the wake of the Gross decision, Oswald commented that “employee lawyers are no longer doing to be able to rely on statistics alone” to prove demonstration, but will have to use pretext evidence, such as showing that “an employer has deviated form its own protocols in taking action against an employee, such as treating other employers different from the older worker.”

The article, entitled “Q&A: ‘But-For’ Standard Keeps Plaintiffs’ Lawyers on Their Toes”, was originally published on December 18, 2012.

R. Scott Oswald represents employees in whistleblower and discrimination cases, regularly speaks on employment law issues, and has offered testimony to the EEOC calling on the agency to strengthen its enforcement of age discrimination laws.