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The Third Circuit determines that the McDonnell Douglas test should be utilized in the analysis of an age discrimination case despite the Supreme Court's holding in Gross v. FBL Financial Services, Inc.

January 1, 2010
Smith v. City of Allentown, 2009 U.S. App. LEXIS 28188 (3d. Cir. Dec. 22, 2009)

In Smith, the Third Circuit Court of Appeals determined that the but-for causation standard required by the United States Supreme Court in Gross v. FBL Financial Services, Inc. for age discrimination cases does not conflict with the continued use of the McDonnell Douglas test. Specifically, the court reasoned that Gross held that it is improper to shift the burden of persuasion to the defendant in an age discrimination case and noted that McDonnell Douglas imposed no shift in that burden. While noting that the Supreme Court "expressed ambivalence about the utility of burden-shifting in age discrimination claims," the court explained that McDonnell Douglas requires that the burden of persuasion—including the burden of proving "but for" causation—remains on the plaintiff.

Case Law Alert - 1st Qtr 2010

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Lee C. Durivage
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(215) 575-2584
lcdurivage@mdwcg.com

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