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Gross v. FBL Financial: Requiring “But-For” Causation in All Age Discrimination Cases
In a 5-4 decision, the U.S. Supreme Court determined that the burden-shifting standard applicable to “mixed-motive” discrimination cases brought under Title VII specifically does not apply to age discrimination cases brought under the ADEA, pursuant to the plain statutory language of the ADEA. In Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S.Ct. 2343 (2009), a plaintiff asserting a disparate treatment claim under the ADEA must prove that age was the “but-for” cause of an adverse employment decision, not merely one “motivating factor.” The decision finds that while mixed-motive cases are permitted under Title VII, they are not permitted under the ADEA.
In 2003, FBL Financial Group reassigned long-term employee Jack Gross, then 54 years old, from his position as claims administration director to claims project coordinator. FBL also transferred many of Gross’ duties to a slightly younger female employee who once reported to Gross and who was assigned the newly created position of claims administrative manager. Gross and the female employee received the same compensation – the same compensation Gross had received before the transition—but Gross considered the new position and reallocation and reduction of his duties a demotion.
In 2004, Gross filed suit in the Southern District of Iowa, alleging that his reassignment was based, at least in part, on his age in violation of the Federal Age Discrimination in Employment Act (“ADEA”). Gross presented evidence that FBL’s actions were based at least in part on his age. FBL claimed that it reassigned Gross as part of a corporate restructuring and that Gross’ new position was better suited to his skills.
The district court judge gave the jury a “mixed-motives” instruction, telling the jury that it must find in favor of Gross if he proved, by a preponderance of the evidence, that FBL had demoted him and that his age “was a motivating factor” for doing so. The trial court further instructed that age was a “motivating factor” if it “played a part or a role in FBL’s decision to demote” Gross. The judge instructed the jury that it should find in favor of FBL if FBL proved by a preponderance of the evidence that it “would have demoted Gross regardless of his age.” The jury returned a verdict in favor of gross for about $47,000. FBL appealed.
On appeal, the Eighth Circuit reversed and remanded, stating that the jury had been incorrectly instructed under the burden-shifting standard established in Justice O’Connor’s concurring opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989), a Title VII discrimination case. Under the Eighth Circuit’s interpretation of Price Waterhouse, a plaintiff must first use direct evidence to establish a prima facie case of discrimination, creating a rebuttable presumption of discrimination. The burden then shifts to the employers to demonstrate that it would have taken the same action regardless of any impermissible considerations of age or the like, which then voids the presumption of discrimination. The question then becomes one of whether unlawful discrimination occurred.
Gross conceded that he had not presented direct evidence of discrimination – evidence showing a specific link between the allegedly illegal motive and the adverse employment action. As a result, the Eighth Circuit determined that a mixed-motive instruction was not warranted at all and the entire burden of persuasion should have remained with the plaintiff at all times. The Circuit Court ruled that the trial court should have instructed the jury only to determine whether Gross proved that “age was the determining factor in FBL’s employment action.”
The Supreme Court granted certiorari to decide the issue of whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motive/ burden-shifting instruction in a non-Title VII discrimination case. Indeed, as Price Waterhouse itself was a splintered decision on the Court, and only Justice O’Connor’s concurrence, joined by Justice White, required a presentation of direct evidence to effectuate the burden shift.
The Title VII mixed-motive standard does not apply to ADEA claims
Although the Supreme Court granted certiorari on – and the parties briefed and argued – the “direct evidence” issue, that is not ultimately the question answered by the Court. Instead, the Court decided that it first had to determine “whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim under the ADEA” if the employee does produce direct evidence of an improper motive.” Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S.Ct. 2343, 2348 (2009) The Court held that it does not.
The Court first addressed whether Price Waterhouse and the Title VII mixed-motive standard applies to ADEA cases, since the statutes are worded differently. Title VII was amended in 1991 to enable “mixed-motive” claims – enabling an employee to win by showing that an improper consideration was “a motivating factor,” even if it was not the sole motivating factor. In such mixed-motive cases, once a plaintiff proves that membership in a protected class played a motivating factor in an adverse employment action, the burden shifts to the employer to prove that it would have made the same decision even if it had not taken that factor into account.
Since Price Waterhouse, the Eighth Circuit, like numerous other courts, had extended the Title VII mixed-motive burden-shifting analysis of Justice O’Connor’s concurrence to ADEA cases. See, e.g., Gross v. FBL Financial Services Inc., 526 F.3d 356, 359 (8th Cir. 2008) (citing Erickson v. Farmland Indus. Inc., 271 F.3d 718, 724 (8th Cir. 2001)).
However, the Supreme Court pointed out that Congress did not extend the mixed motive language to the ADEA, which states that it is unlawful for an employer to discriminate against an employee “because of such individual’s age.” 29 U.S.C. section 623(a). The Supreme Court found it significant that while Congress amended Title VII to allow mixed-motive claims, it did not similarly amend the ADEA when given the opportunity. 129 S.Ct. at 2345.
The Court held that the words “because of such individual’s age” mean that age must be the reason that the employer took the action in question. As a result the Court found that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action,” not merely a “motivating factor.” 129 S.Ct. at 2352. Accordingly, there is no burden-shifting in ADEA cases; the employee retains the burden of persuasion throughout. An employer need not show that it would have made the same decision regardless of age, even if the employee produces direct or circumstantial evidence that age may have been a contributing factor in the adverse action. Id.
The Court never had to answer the question that was actually briefed and argued because a Title VII mixed-motive jury instruction is never appropriate in ADEA cases. The Court vacated the Eighth Circuit’s decision and remanded the case for further proceedings.
Justice Stevens authored a dissent, joined by Justices Souter, Ginsburg, and Breyer, stating that he disagreed “not only with the Court’s interpretation of the (ADEA), but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction” Id. at 2353. The dissent argued that Price Waterhouse is controlling and it was inappropriate for the Court to “adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.” Id. The dissent also disagreed that Congress’ decision to amend Title VII and not the ADEA was indicative of any specific intent by Congress to preclude mixed-motive cases under the ADEA, and in fact finds “some evidence” that Congress intended for the 1991 amendment to apply to ADEA claims as well as Title VII claims. Id. at 2356
CONCLUSION
The Gross opinion clearly eliminates a plaintiff’s ability to bring a mixed-motive claim under the ADEA. The decision makes it equally clear that the amended statutory language makes mixed-motive cases viable under Title VII, though it is still unclear as to under what circumstances a plaintiff is entitled to a mixed-motive instruction, as the Supreme Court did not reach that issue in Gross as expected. It is equally unclear as to what standard a court should apply – and how it should instruct the jury – in cases where both ADEA and Title VII claims are involved.
Plaintiffs seeking to bring age discrimination lawsuits that may be based on mixed-motive claims should look to applicable state court statutes, which likely have a less stringent standard that the ADEA.
The impact of Gross is widely predicted to be short-lived, however, as many practitioners theorize that Congress will soon respond to this ruling and pass a bill amending the ADEA to allow mixed-motive cases under that statute. Such an amendment would make this ruling moot. However, the majority opinion in Gross expresses overall skepticism about the burden-shifting of Title VII mixed-motive cases, stating that “(w)hatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply.” 129 S.Ct. at 2352. Such a comment might indicate that the Supreme Court would also do away with Title VII mixed motive analysis if given the opportunity.
One lasting impact of the Gross decision, however, is its indication of the sharp divide on the Court. If Judge Sotomayor is confirmed as the next Justice, replacing Justice Souter, this divide is unlikely to change, as Souter sided with the dissent. Should another Justice retire during President Obama’s term, however, the appointment of another Justice may shift the Court’s balance of power in employment cases.
About the Author
Mr. Gray is a partner of Zuber & Taillieu LLP, where he specializes in employment law. He earned a J.D. from Loyola Law School, where he graduated second in his class, and was Chief Note and Comment Editor of the Law Review.
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