An editorial in The New York Times decried the Supreme Court's recent decision in Gross v. FBL Financial Services, Inc. as a "dreadful ruling" and called on Congress to pass a law to "reverse that injustice." This is but one example of the controversy that follows Gross.
Is the uproar warranted? And what does it mean for employers?
The Rare Mixed Motive Case
The Gross decision only applies to a small subset of employment discrimination cases: cases in which it is alleged that an employer improperly considered an employee's age in making an employment decision yet would have made the same decision anyway. These cases are often called "mixed motive" discrimination cases.
The mixed motive definition first appeared in the 1989 Supreme Court case Price Waterhouse v. Hopkins. In Price Waterhouse, the plaintiff, an accountant, alleged that she was passed over for partnership because of her sex. The Supreme Court ruled that where consideration of a protected characteristic (such as sex, age, race, etc.) played a part in an employment decision, an employer could avoid Title VII liability by showing that it would have made the same decision even if it had not taken the protected characteristic into account.
Acting in response to this controversial decision, Congress amended Title VII in 1991 to provide that an employer's showing that it would have made the same decision was no longer a defense to Title VII liability. However, such a showing remains a defense to most damages, including backpay, reinstatement, and punitive damages. Notably, Congress did not amend the Age Discrimination in Employment Act (the ADEA) at the same time that it amended Title VII.
The Gross Holding
Jack Gross filed a claim against his employer, FBL, alleging age discrimination in violation of the ADEA. At trial, Mr. Gross introduced circumstantial evidence showing that he was reassigned to an arguably less favorable position at work, and that this decision was partly motivated by his age. Assuming that the Price Waterhouse analysis applied to Mr. Gross's claim, the burden of proof would next have shifted to the employer to show that it would have made the same decision without considering Mr. Gross's age.
The Supreme Court, however, held that because Mr. Gross brought his claim under the ADEA, not Title VII, Price Waterhouse and the 1991 Title VII amendments did not apply. A plaintiff cannot establish ADEA liability by simply showing that age was a motivating factor in an adverse employment action; the plaintiff must show that age was the deciding factor.
What Does It Mean?
Despite the hue and cry surrounding Gross, the decision is not a game-changing decision for the vast majority of cases and should not affect an employer's practices or its evaluation of the risk of any specific decision. The burden shifting, mixed motive analysis rarely has a significant impact on a jury's thought process, and it should not affect an employer's common-sense understanding of what it needs to consider. An employer still must ask itself the following questions:
- Can I persuasively demonstrate that the employment decision was made for a legitimate business reason?
- Have I treated similarly-situated younger employees the same way?
- If I haven't treated similarly-situated younger employees the same way, can I persuasively explain why not?
If an employer cannot answer "yes" to each of those questions, it is making a risky decision, regardless of whether the mixed motive analysis is applied. An employer must approach every employment decision (regardless of the protected class status of the employee) as if it will have to prove to a jury that the decision was made fairly and for a legitimate business reason. Prudent employers consider the strength of its evidence before a complaint or charge of discrimination is filed.
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