On June 18, 2009, the United States Supreme Court held in Gross v. FBL Financial Services, Inc., __ S.Ct. __, 2009 WL 1685684, that an employee must satisfy a stringent 'but-for' causation standard in order to shift the burden of persuasion to the employer in a federal "mixed-motive" age discrimination case. Writing for a five-Justice majority, Justice Clarence Thomas narrowly interpreted a provision of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a), under which employers are prohibited from taking adverse actions against an employee "because of such individual's age." Justice Thomas concluded that the ADEA does not authorize "mixed-motive" age discrimination claims.
In 2003, 54-year old Jack Gross, a long-time employee of FBL Financial Services Inc., was reassigned to a new position and several of his job responsibilities were delegated to a younger employee in her forties. Gross sued FBL in federal court under the ADEA, alleging that his reassignment was an adverse action improperly taken "because of" Gross' age. At trial, Gross introduced evidence suggesting that his reassignment was a demotion that occurred at least partly based on his age. Because Gross' evidence indicated that his age may have been a factor in FBL's reassignment decision, the trial court instructed the jury that FBL violated the ADEA if Gross' age was "a motivating factor" in the company's decision. The jury returned a verdict for Gross, awarding him $46,945 in compensatory damages.
The Eighth Circuit Court of Appeals reversed the trial court, finding that its jury instructions were improper. The Eighth Circuit found that Gross needed to present direct evidence that his age had been a substantial factor in the adverse employment action. Since Gross conceded that he lacked direct evidence of age discrimination, the Appellate Court held that the jury should not have been given a "mixed-motive" instruction. Rather, the jury should have been directed only to determine whether Gross carried the higher burden of proving that age had been the determining factor, as opposed to merely a motivating factor.
The question ostensibly before the U.S. Supreme Court was whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motive jury instruction in an age discrimination case. When the Supreme Court accepted the Gross case for consideration, a split existed among the circuits on this question. Although the circuit courts agreed that mixed-motive instructions are appropriate where an employer was motivated by multiple factors, disagreement persisted over the correct jury instructions in mixed-motive age discrimination claims.
The Supreme Court's Decision
Justice Thomas explained that the threshold issue in the case was whether mixed-motive discrimination cases were acceptable at all under the ADEA. The Court reframed the question presented by the Gross case as being whether the burden of persuasion ever shifts to the employer defending a mixed-motive federal age discrimination claim. The majority Justices held that in a mixed-motive age discrimination case, a plaintiff must prove his claim under the same standards that apply to a single-motive age discrimination case. As Justice Thomas stated, "[t]o establish a disparate-treatment claim under the plain language of the ADEA . . . a plaintiff must prove that age was the 'but-for' cause of the employer's adverse decision."
Certain "material differences" in the language of Title VII, as compared with the ADEA, figured largely in the majority's decision. The Court reasoned that although Congress had decided to amend Title VII in 1991 to explicitly authorize mixed-motive discrimination claims, no such amendment had been made to the ADEA. "When Congress amends one statutory provision but not another," Thomas wrote, "it is presumed to have acted intentionally." Therefore, the Court held that the mixed-motive burden-shifting framework for Title VII cases was inapplicable to the ADEA.
Implications for Employers
Mixed-motive discrimination claims force employers to convince a court and jury that even if a discriminatory reason partly motivated an adverse action, the same action would have been taken without the discriminatory reason. Such claims essentially require the employer at least implicitly to acknowledge that although discriminatory reasons "may have been considered," the illicit reasons were not the ultimate cause of the adverse action. These mixed-motive cases are understandably difficult for employers to win.
The most immediate consequence of Gross is the elimination of all mixed-motive cases arising under the ADEA. Employees now must prove that age was the determinative factor responsible for the employer's adverse employment action. If age was merely a factor arguably motivating the adverse action, the employee generally will have failed to prove age discrimination under the ADEA.
The Gross decision is plainly good news for employers. However, employers should recognize the following sobering points:
Gross may be a short-lived victory for employers. Congress is likely at least to try to overturn Gross—just as Congress legislatively overturned the U.S. Supreme Court's employer-friendly ruling in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (shortening limitation periods for pay discrimination claims under Title VII), by enacting the Lilly Ledbetter Fair Pay Act of 2009. Given the current composition of Congress, there is a reasonable chance that such "remedial legislation" could be enacted to overturn Gross.
Even under Gross, employers who lack a clear and well-documented business reason for taking an adverse action against an older employee may not succeed in persuading a court or jury that the action was taken for reasons other than the employee's age. If employer FBL would have had such evidence of the reasons it restructured Gross' job and delegated some of his responsibilities to a younger employee, Gross' claim might have been defeated without the distraction and expense of protracted litigation.
While Gross provides a benefit to employers facing federal age discrimination claims, those benefits may vanish if employees elect to assert their age claims under certain states' increasingly employee-friendly state discrimination laws. See A New Arrow In the Plaintiff-Employee's Quiver: Pursuing Federal Discrimination Claims in Illinois State Court.