Introduction

In the 1989 case of Price Waterhouse v. Hopkins, the United States Supreme Court addressed the proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, when an employee alleges that he or she suffered an adverse employment action because of both permissible and impermissible considerations (commonly referred to as a "mixed-motives" case). In Price Waterhouse, a plurality of the Court, along with two concurring Justices, held that if a plaintiff shows that his or her membership in a protected class was a motivating factor in an employment decision, then the employer can only avoid liability by showing a preponderance of evidence that it would have made the same decision even if it had not taken that impermissible factor into account. In other words, the burden of persuasion "shifts" to the employer to show that it would have taken the same action regardless of that impermissible consideration.

Following the Supreme Court's decision in Price Waterhouse, Congress amended Title VII to make "motivating factor" the standard in all Title VII cases. As amended, Title VII provides that an unlawful employment practice is established when the plaintiff demonstrates that race, color, religion, sex, or national origin was "a motivating factor" for any employment action, even if other factors also motivated the action. Congress did not amend the Age Discrimination in Employment Act ("ADEA") in the same manner, even though it amended the ADEA in other ways. Nonetheless, many courts permitted mixed-motive burdenshifting instructions to be given to juries in age discrimination cases under the ADEA. That practice is now prohibited under the United States Supreme Court's recent holding in Gross v. FBL Financial Services, Inc. (2009).

The Facts

Petitioner Jack Gross started working for FBL Financial Group, Inc. ("FBL") in 1971. In 2003, when he was 54 years old, Gross was reassigned from his then-current position of "claims administration director" to the position of "claims project coordinator." As part of this reassignment, many of Gross' job duties were transferred to a newly created position - "claims administration manager." That new position was given to an individual in her early forties who had previously been supervised by Gross.

Although Gross received the same compensation as the claims administration manager, he considered the reassignment a demotion because of the reallocation of his former job duties. Gross filed suit under the ADEA, asserting that FBL demoted him because of his age. The case proceeded to trial where Gross presented evidence suggesting that his demotion was based at least in part on his age. At the close of trial and over FBL's objections, the District Court judge gave a mixed-motive jury instruction. Specifically, the judge told the jury that it must return a verdict for Gross if he proved by a preponderance of evidence that FBL demoted him and that his age was a "motivating factor" in that demotion. The judge further explained to the jury that Gross' age would qualify as a "motivating factor" if it played "a part or role" in FBL's decision to demote Gross. Additionally, the jury was instructed as to FBL's burden of proof that it must return a verdict for FBL if it proves by a preponderance of evidence that FBL would have demoted Gross regardless of his age. The jury ultimately returned a verdict in favor of Gross, awarding him $46,945 in lost compensation.

On appeal, the Eighth Circuit Court of Appeals reversed the verdict and remanded the case for a new trial after finding that the District Court erred in giving the mixed-motive instruction. The Eighth Circuit found that Gross was required to present direct evidence of discrimination (i.e. evidence that shows a specific link between the alleged discriminatory animus and the employment decision at issue) in order to shift the burden of persuasion to the employer to show that it would have taken the same action regardless of the illegitimate factor. The Eighth Circuit found that the District Court's jury instructions were flawed because they permitted the burden to shift to FBL upon the presentation of a preponderance of any evidence showing that age was a motivating factor - not just direct evidence. Because Gross had not presented direct evidence of discrimination, the Eighth Circuit held that the jury should have been instructed only to determine whether he proved that age was the determining factor in FBL's employment action.

The Issue Presented to the Supreme Court

The question posed to the United States Supreme Court was whether a plaintiff is required to present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case. The Supreme Court never addressed that issue. Instead, it examined whether the burden of persuasion ever shifts to the employer in a mixed-motive discrimination claim brought under the ADEA. In a 5-4 decision, the Court held that the burden of persuasion never shifts to the employer. Rather, the plaintiff pursuing an ADEA disparate treatment claim must always prove that age was the "but for" cause of the employer's adverse action.

The Supreme Court's Opinion

In holding that the burden of persuasion does not shift to the employer in a disparate treatment case brought under the ADEA, the Supreme Court differentiated between the statutory language in Title VII and the ADEA. The Supreme Court highlighted the specific provision of the ADEA, which provides that "[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." The Court determined that the ADEA's requirement that an employer took adverse action "because of" age means that age was the "reason" for the action. Thus, the Court concluded that in order to establish a disparate treatment claim under the ADEA, a plaintiff must prove by a preponderance of evidence (which may either be direct or circumstantial) that his or her age was the "but for" cause of the employer's adverse decision. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when the plaintiff produces some evidence to show that age was a motivating factor in the employment decision.

The Practical Effect

The Supreme Court's decision in Gross has been heralded as a "victory" for employers. The Court in its decision left no doubt that the plaintiff must prove that the adverse employment action was taken because of his or her age. In effect, ADEA plaintiffs have a heightened burden of proof compared to those bringing discrimination claims under Title VII. There is no doubt that the Gross decision assists employers defending against disparate treatment claims of age discrimination.

It is important to keep in mind that the Supreme Court's decision in Gross interprets the ADEA, a federal law. Many states, including Ohio, have their own discrimination statutes. However, in Ohio, the elements and burden of proof in a state agediscrimination claim parallel the ADEA analysis. That said, District Courts have continued to apply the burden-shifting framework to age discrimination claims at the summary judgment stage even following the Supreme Court's pronouncement in Gross. While acknowledging that Gross eliminated the "mixed-motive" case under the ADEA, District Courts have held that Gross does not alter the use of the burden-shifting framework for cases at the summary judgment level where the alleged discrimination is indirect, at least to the extent that the framework shifts the burden of production. Thus, employers defending against age discrimination claims in such circumstances will likely continue to find themselves needing to present evidence establishing that they would have taken the same action regardless of the plaintiff's age in order to prevail at the summary judgment level.