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Dillon v. West Publishing

Fallout From Supreme Court's "Gross" Decision Continues to Impede Anti-Discrimination Efforts

AARP’s brief on behalf of a worker whom a jury found had suffered age discrimination failed to convince a federal appeals court, which returned the case for retrial.


Larry Dillon sued his employer, West Publishing, alleging several violations of labor laws. He also filed a complaint with the federal Equal Employment Opportunity Commission (EEOC) based on allegations that West had violated his civil rights under the federal Age Discrimination in Employment Act (ADEA) (among other claims). After the EEOC dismissed his complaint and let him know he had the right to pursue the ADEA claim in court, Dillon amended his prior lawsuit and added the age discrimination claim. A jury found in his favor.

West appealed, arguing among other things that the ADEA claim was filed too late and barred by the statute of limitations. West also asserted that even if the ADEA claim was allowed to proceed, the jury received erroneous instructions as to West’s liability. A trial court agreed and overturned the jury’s verdict. A federal appeals court affirmed this result, basing its ruling on a 2009 decision from the U.S. Supreme Court that sharply limited the rights of victims of age discrimination.

In Gross v. FBL Financial Services, Inc. the Supreme Court held that the ADEA does not permit “mixed-motives” claims — where there is evidence that the employee’s age and other factors motivated the employer’s adverse job decision. Instead, the Court said, the ADEA’s language prohibiting discrimination "because of’” age means that the employee must prove that age was “the ‘but-for’ cause” of the employer’s decision. This decision is highly flawed on many grounds, and AARP is urging Congress to correct it. Meanwhile, however, AARP attorneys seek to limit Gross’ application in the courts.

In Dillon’s case, the appeals court ruled, the jury was not properly instructed as to the “but-for” standard, but instead was repeatedly instructed that age only had to be a “motivating factor” in the decision to terminate Dillon.

AARP Foundation Litigation attorneys filed AARP’s “friend of the court” brief in Dillon, as they did in Gross. The Gross ruling has forced age discrimination victims to meet higher standards of proof than bias victims under other similar laws. AARP’s brief argued that there are no compelling legal or policy reasons for establishing a two-tier approach in discrimination cases.

What’s at Stake

Congress is considering legislation to reverse Gross and in that way to reaffirm that victims of civil rights violations stand on equal footing — regardless of whether the discrimination suffered is based on race, gender, religion, ethnicity, age or disability. AARP is strongly supporting that legislation, and the decision in Dillon reinforces the need for such legislative amendments.

Status of the Case

Dillon v. West Publishing
was decided by the U.S. Court of Appeals for the Ninth Circuit and returned for reconsideration by the U.S. District Court for the District of Nevada.

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Find the most recent cases in which AFL has advocated in courts nationwide for the rights of older persons, and filed AARP’s amicus curiae (“friend of the court”) briefs that help courts decide precedent-setting cases.

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