June 22, 2009
The Supreme Court has ruled that an employee bringing a disparate treatment claim for age discrimination under the Age Discrimination in Employment Act (ADEA) must prove that age was the "but-for" cause of the adverse employment action. Gross v. FBL Financial Services, Inc., No. 08-441 (June 18, 2009). The Court declined to recognize a special class of "mixed motive" cases in which the burden of persuasion shifts to the employer once age is shown to have been a "motivating factor" in the employment decision.
The plaintiff, Jack Gross, alleged that he had been demoted in violation of the ADEA. The district court gave a "mixed-motive instruction" to the jury: it should return a verdict for Gross if it determined that age was a motivating factor in his demotion, unless the employer proved by a preponderance of evidence that it would have demoted Gross regardless of his age. The jury returned a verdict for Gross and on appeal the Eighth Circuit reversed. Relying on Justice O’Connor’s concurring opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Eighth Circuit ruled that Gross had not presented "direct evidence" that age was a criterion in the decision to demote him and therefore was not entitled to a mixed-motive instruction.
The Supreme Court vacated the decision of the Eighth Circuit because it had applied the wrong standard. The decision, written by Justice Thomas on behalf of a five-justice majority (Chief Justice Roberts and Justices Scalia, Kennedy, and Alito), explained that the mixed-motive analysis used in Title VII cases did not apply to ADEA cases because of differences that now exist in the text of those statutes. As amended by the Civil Right Act of 1991, Title VII allows claims when an improper criterion was "a motivating factor" in the adverse employment decision; the ADEA is violated only when the decision was made "because of" the employee’s age. The Court concluded that "because of" requires a showing of but-for causation and that the burden of persuasion does not shift to the employer in ADEA cases. The Court found compelling that Title VII‘s "motivating factor" language was an amendment added at the same time the ADEA was amended, but that Congress did not include similar language in the ADEA. Thus, to prevail in a disparate treatment claim under the ADEA, a plaintiff bears the burden of persuading the fact-finder that his or her age was the but-for cause of the employment action at issue.
Justice Stevens and Justice Breyer filed dissenting opinions. Justice Stevens emphasized that the language in the ADEA was similar to that of Title VII at the time of the Price Waterhouse decision and that courts had used the Title VII framework in evaluating ADEA cases. Justice Breyer argued that the majority’s interpretation of "because of" was too narrow.
The decision in Gross, which runs counter to the holding of every court of appeals to consider the issue, will make it more difficult for employees to establish disparate treatment claims under the ADEA. Like the Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), this decision could prompt action by Congress to amend the law. Moreover, this decision, along with the Court’s recent decisions in Smith v. City of Jackson, 544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. 2395 (2008), regarding disparate impact claims under the ADEA, will be critically important in the resolution of age discrimination litigation arising out of the current economic downturn.
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