The U.S. Supreme Court held on June 18, 2009, that plaintiffs alleging intentional age discrimination must prove by a preponderance of the evidence that age was the “but-for” cause of the challenged adverse employment action. In Gross v. FBL Financial Services, Inc., the Court, in a 5-4 opinion by Justice Thomas, clarified that plaintiffs asserting claims of disparate treatment under the ADEA may not prevail based upon proof that age was merely a motivating or substantial factor behind the employment action. Based upon material differences between the text of the ADEA and Title VII, the Court declined Gross’ request to extend the lesser burden of persuasion for alleged mixed-motive claims under Title VII to claims of age discrimination.
Gross, age 54, alleged age discrimination after he was reassigned jobs and many of his former responsibilities were transferred to a younger employee who he had previously supervised. Gross’ employer, FBL Financial Services, Inc., contended that he was reassigned to a position that better suited his skills as part of a corporate restructuring.
At trial, Gross introduced evidence suggesting that his reassignment was based, at least in part, on his age. By virtue of a so-called “mixed motive” jury instruction, the trial court effectively shifted the burden of persuasion to FBL to convince the jury that it would have taken the same action even absent Gross’ age. The jury was instructed that it could return a verdict for Gross if it found that his age “was a motivating factor” behind his reassignment. The trial court also instructed the jury that it must find for Gross’ employer if it proved by a preponderance of the evidence that it would have demoted Gross regardless of his age. Based upon these instructions, the jury awarded lost compensation damages for Gross and FBL appealed.
The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed. According to the Eighth Circuit, the jury instructions improperly permitted the jury to shift the burden to Gross’ employer based merely on circumstantial evidence of age discrimination. In other words, the Eighth Circuit required direct evidence of age discrimination before shifting the burden of persuasion to the employer. Gross acknowledged that his evidence of age discrimination was circumstantial and not direct evidence. As a result, the Eighth Circuit concluded that he was not entitled to a mixed-motive instruction.
The parties asked the Supreme Court to decide whether plaintiffs must present direct evidence of discrimination in order to obtain a mixed-motive jury instruction in a non-Title VII case. The Court, however, answered this question by resolving the more fundamental and anterior issue of whether the burden of persuasion ever shifts to the defendant in an alleged mixed-motive ADEA case. The Court determined that, regardless of whether the plaintiff introduces direct or circumstantial evidence of discrimination, the burden of persuasion does not shift to the employer.
In rejecting Gross’ request to transfer the burden-shifting framework of Title VII to ADEA claims, the Court emphasized that statutory construction must begin with the ordinary meaning of the language employed by Congress. In the Civil Rights Act of 1991, Congress amended Title VII by explicitly authorizing discrimination claims with limited remedies where race, color, religion, sex or national origin was “a motivating factor” for an adverse employment decision, even though other factors also motivated the employer. The 1991 Civil Rights Act abrogated the Court’s splintered decision in Price Waterhouse v. Hopkins, where a plurality of the Court and two Justices concurring in the judgment determined that employers may avoid all liability upon proof by a preponderance that it would have made the same decision regardless of the plaintiff’s membership in a protected class.
Congress amended the ADEA contemporaneous to the 1991 Civil Rights Act amending Title VII, but did not add a provision to the ADEA allowing plaintiffs to prevail by showing that age was simply a motivating factor of the employer’s action. The text of the ADEA requires proof that the employer acted “because of” age. And the ordinary meaning of “because of” age is that age was the “reason” the employer acted, not simply a motivating factor. In other words, ADEA plaintiffs alleging intentional discrimination must establish at least that age was the “but-for” cause of the employer’s adverse decision. The Court further concluded that the text of the ADEA contains no language allocating the burden of persuasion. Accordingly, the Court found no reason to depart from the default rule that the party seeking relief has the burden of persuasion.
The Court further emphasized that Price Waterhouse had led to a burden-shifting framework for Title VII cases that is difficult to apply, resulting in a disproportionate amount of appellate reversals or judgments notwithstanding verdicts. The 5-4 majority indicated that as a practical matter, the problems associated with applying the burden-shifting framework eliminate any perceivable benefit to extending its framework to ADEA claims.
Justice Stevens, joined by Justice Souter, Justice Ginsberg and Justice Breyer, issued a dissenting opinion indicating that a plaintiff need not present direct evidence of age discrimination to obtain a mixed motives instruction. The dissent opined that the most natural reading of the ADEA’s “because of age” language encompassed actions motivated in whole or in part by age. The dissent further cited rejection of the “but-for” standard both in Price Waterhouse and the 1991 Civil Rights Act and asserted the Court’s decision constituted “unnecessary lawmaking.”
Justice Breyer dissented separately, joined by Justice Souter and Justice Ginsberg. This dissent emphasizes that the words “because of” do not inherently require a showing of “but-for” causation. The dissent further indicates that the “but-for” standard is more problematic when assessing an employer’s motives as compared to evaluating “reasonably objective scientific or commonsense theories of physical causation” in a case brought by a “typical tort plaintiff.”
Perhaps the most critical impact of this opinion will be gleaned from reactions to its textualist approach emphasizing the ordinary meaning of statutory language. Numerous federal, state and local statutes prohibit discrimination “because of” a particular protected status. Even though the parties framed the issue in terms of mixed-motive instructions applicable to non-Title VII discrimination cases, the Court was careful to limit its holding to alleged mixed-motives discrimination claims brought under the ADEA. The Court indicated that in the context of statutory interpretation, careful and critical examination must be taken before applying rules applicable under one statute to a different statute. The stage is now set for that careful and critical examination.
Please contact any member of our Employment and Labor Team or any Baker Hostetler attorney with questions or for information about how this decision may impact your business. Authorship Credit: M. Scott McIntyre
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