In a surprise 5-4 decision, the United States Supreme Court held in Gross v. FBL Financial Services, Inc. that employees bringing a claim of age discrimination under the Age Discrimination in Employment Act (ADEA) must prove that age was the “but-for” cause of an adverse employment action, not merely “a motivating factor.” The Court further found that the burden of persuasion does not shift to the employer in a “mixed-motive” ADEA case, even if the plaintiff introduces direct evidence that age was a factor in the challenged decision.

This case arose after FBL transferred its employee, Jack Gross, a 54-year old longterm employee, from his position as claims administration director to claims project coordinator. In addition, many of Gross’ duties were transferred to another employee, then in her forties, who once reported to Gross.

Gross filed suit under the ADEA in federal court. At trial, Gross presented evidence suggesting that FBL’s actions were based at least in part on Gross’ age. Jury instructions issued by the district court stated that if Gross proved by a preponderance of the evidence that his age was a “motivating factor,” a verdict must be returned in his favor. The jury ultimately returned a verdict for Gross for approximately $47,000. The Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had not been properly instructed under the burden-shifting framework derived from U.S. Supreme Court decisions regarding Title VII discrimination claims, including the Price Waterhouse v. Hopkins decision. Under this framework, if a Title VII plaintiff proves discrimination was a motivating factor in an adverse employment action, the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of age. The petition for certiorari asked the Supreme Court to decide if a plaintiff must present “direct evidence of discrimination in order to obtain a mixedmotive instruction in a non-Title VII case.” Gross conceded that he did not show, through direct evidence, that he was discriminated against.

The Supreme Court vacated the Court of Appeals’ decision and remanded for further proceedings. The Court found that, before deciding the issue presented, it first had to determine “whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim under ADEA” if an employee presents direct evidence of an improper motive. The Court held that it does not. Relying on textual differences between Title VII and the ADEA, the Court found that the ADEA does not authorize mixedmotive age-discrimination claims because the burden of persuasion always remains on the employee in a disparate treatment case to prove that age was the “but-for” cause of an employer’s adverse decision, not merely a motivating factor.

Interestingly, the Supreme Court indicated that there was some doubt as to whether Price Waterhouse would be decided the same way today because “it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply.”