As predicted in a previous edition of this newsletter, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009) is one of the most important discrimination cases to be handed down by the Supreme Court in recent years. The Court was faced with the question of whether a plaintiff in an age discrimination case must present direct evidence of discrimination in order to receive a “mixed motive” jury instruction. However, the divided Court never addressed that question because it determined that under the Age Discrimination in Employment Act (“ADEA”), a plaintiff must prove that age was the but-for cause of the adverse employment action, not merely a motivating factor.

The Court noted that while it is not clear that Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) would have been decided the same way today, Congress amended Title VII to add liability for discrimination when the improper consideration was a motivating factor for the adverse employment action. Justice Thomas, writing for the Court, stated that the ADEA was not similarly amended and thus the Court was not bound by Title VII precedent regarding this issue.

The Court’s opinion will have a significant impact because prior to this decision each circuit applied the burdenshifting framework to ADEA cases. It is less clear what effect the decision will have on state discrimination claims based on state analogs to the ADEA.

One thing that is certain is that plaintiffs will have a much harder time proving a discrimination claim based on age. Justice Breyer, dissenting, pointed out that but-for causation in a discrimination case is far from scientific and will force parties to confront problematic hypothetical inquiries in which the “employer will often be in a stronger position than the employee to provide the answer.”

While this decision favors employers, it may cause a Congressional backlash against the Supreme Court, placing employers in a worse position. Many predict a Ledbetter-like reaction from Congress, legislating a reversal of the Court’s decision. The opinion essentially invited Congressional action because it turned almost exclusively on the lack of any reference to “motivating factor” in the text of the ADEA. But if Congress decides to amend the ADEA, there is no guarantee that it will only add “motivating factor” text to the statute. Congress could take the opportunity to further broaden the ADEA. So while this may be a victory for employers, they may bear the brunt of the punishment for the Court’s opinion.