On June 18, 2009, the United States Supreme Court ruled that a plaintiff bringing an Age Discrimination in Employment Act (ADEA) disparate treatment claim must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged employment action. Even in so-called "mixed-motives" cases, where a plaintiff claims to have produced some evidence that age was one motivating factor in the employer's decision, the burden of persuasion does not shift to the employer to show that it would have taken the challenged action regardless of age, as would be the case in a Title VII discrimination case. Instead, the Supreme Court held that, unlike Title VII, the plain text of the ADEA does not authorize mixed-motives claims. This decision makes age-bias lawsuits under the ADEA significantly harder for plaintiffs to win. Gross v. FBL Financial Services, Inc., 08-441 (June 18, 2009).
Legal Background
The ADEA provides, in relevant part, that "[i]t shall be unlawful for an employer...to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's age. 29 U.S.C. § 623(a)(1) (emphasis added).
Gross v. FBL
Jack Gross worked for FBL for more than 30 years, beginning in 1971. During that period, Gross was promoted through the ranks until, in 2001, he held the position of Claims Administration Director. In 2003, when he was 54 years old, Gross was reassigned to the position of Claims Project Coordinator. At the same time, FBL transferred many of Gross' job responsibilities to the newly-created position of Claims Administration Manager, which was held by a woman in her early forties, Lisa Kneeskern. Kneeskern had previously been supervised by Gross. Although Gross and Kneeskern received the same compensation, Gross considered his reassignment to be a demotion because his new position involved fewer responsibilities. In April 2004, Gross filed suit in district court alleging that his reassignment to the position of Claims Project Coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee because of that individual's age.
At trial, Gross presented evidence that suggested his reassignment was based, at least in part, on his age. At the close of the trial and over FBL's objections, the district court instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that FBL demoted him to claims project coordinator and that his age was a "motivating factor" in FBL's decision to demote him. The court further instructed the jury that Gross' age would qualify as a motivating factor if it "played a part or a role in FBL's decision" to demote him. The court went on to instruct the jury that the verdict must be for FBL if FBL proved by a preponderance of the evidence that it would have demoted Gross regardless of his age.
The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. The Eighth U.S. Circuit Court of Appeals reversed and remanded. Applying the "mixed-motives" standard set forth by the Supreme Court in its splintered decision Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the appeals court found that the jury had been incorrectly instructed by the district court. Specifically, the appellate court found that pursuant to Price Waterhouse, Gross needed to present direct evidence that age discrimination actually motivated FBL's decision to demote him. Only upon the presentation of such evidence, the court found, would the burden of persuasion shift to FBL to prove to the jury that, more likely than not, the decision to demote Gross would have been the same absent consideration of his age. Because Gross conceded that he had not, in fact, presented direct evidence of discrimination at trial, the Court of Appeals held that the district court erred in giving the jury the "mixed-motives" instruction. Instead, the appellate court ruled that the district court should have instructed the jury only to determine whether Gross had carried his burden of proving that age was the determining factor in FBL's decision.
The Supreme Court's Decision
The Supreme Court, in a decision authored by Justice Clarence Thomas, began its opinion by noting that the question posed by the parties was "whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case." The Court stated, however, that it would not reach that question because, as a matter of law, the burden of persuasion never shifts to the party defending an alleged mixed-motives discrimination case under the ADEA. The Court noted that the ADEA is different from Title VII, and said cases interpreting Title VII therefore do not apply to determine the meaning of the ADEA. Specifically, the Court stated that although Congress amended Title VII in 1991 to explicitly authorize mixed-motive discrimination claims where an improper consideration was "a motivating factor" for the adverse action, it did not similarly amend the ADEA.
Second, the Court concluded that the text of the ADEA – which deems an employer's action illegal if it is taken "because of" the employee's age – does not authorize a mixed-motives age discrimination claim. The ordinary meaning of the ADEA's requirement that an employer took adverse action "because of" age is that age was the "reason" that the employer decided to act, the Court said. As a result, the Court ruled, a plaintiff must prove that his or her age was the "but-for" cause of the employer's adverse decision in order to establish a disparate-treatment claim under the ADEA.
Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Stephen Breyer, dissented, accusing the Court of "unnecessary lawmaking," because the issue upon which the holding is based is not the one that the Court granted certiorari to decide. The minority also disagreed with the majority's interpretation of the ADEA, noting disparagingly the majority's "utter disregard of our precedent and Congress' intent."
The Ruling's Importance to Employers
The Supreme Court's decision in Gross v. FBL makes it significantly more difficult for plaintiffs to prevail in age-based discrimination lawsuits under the ADEA. The Court's decision that a mixed-motives claim is never appropriate in an ADEA case marks a significant change and reverses a long-standing rule in most of the federal circuits. Under the old rule, if a plaintiff showed that age was one of the factors considered in connection with an adverse employment action, the burden shifted to the defendant employer to prove that it would have taken the same action regardless of the plaintiff's age. The new rule places on the plaintiff exclusively the rather difficult burden of proving that he or she suffered an adverse employment action because of his or her age.
Although the business community will no doubt applaud this decision, there has already been sharp criticism of the holding. It seems likely that an effort will soon be underway to have Congress overturn this ruling, just as it recently overturned other disfavored Supreme Court decisions with amendments to the Americans with Disabilities Act and passage of the Lily Ledbetter Fair Pay Act.
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