Third Circuit Says Gross Doesn’t Conflict With Use of McDonnell Douglas Framework

The well established burden-shifting paradigm of McDonnell Douglas Corp. v. Green, 411 U.S. 742 (1973), can be used to make a claim under the Age Discrimination in Employment Act, despite the U.S. Supreme Court’s recent decision finding it improper to shift the burden of persuasion to a defendant in an ADEA case, the U.S. Court of Appeals for the Third Circuit held Dec. 22 (Smith v. Allentown, Pa.).

The Supreme Court’s opinion in Gross v. FBL Fin. Servs., 77 U.S.L.W. 4531 (2009), established that the burden of persuasion may not be shifted to the defendant in ...