In Gross v. FBL Financial Services, Inc., decided June 18, 2009, the U.S. Supreme Court held that an employee who sues his or her employer for age discrimination must prove that age was the “but-for” cause of an employment decision, even if the employee has some evidence that age was a factor in the decision. The decision draws a bright line between claims of age discrimination and all other forms of discrimination. The case was decided by a 5-4 vote, and could well invite legislative reaction by Congress.
In the Gross case, Jack Gross sued his employer claiming that he was demoted in violation of the Age Discrimination in Employment Act (“ADEA”). At trial, the district court instructed the jury to return a verdict for Gross if he proved that he was demoted and his age was a “motivating factor” in the decision to demote. The court further told the jury that age was a “motivating factor” if it played a part in Gross’ demotion. Importantly, the trial court employed the burden shifting analysis prevalent in most discrimination cases, since the seminal case of Mcdonnell Douglas Corp. v. Green (1973), 411. U.S. 792.
After appeal to the 8th Circuit, the U.S. Supreme Court held that the familiar burden-shifting framework of all other discrimination cases does not apply to cases arising under ADEA. Rather an employee who files an ADEA disparate treatment claim must prove by a preponderance of the evidence ,,, that age was the “but for” cause of an adverse employment action. While the court arguably ducked the precise question that was certified—whether direct evidence of discrimination was necessary in a mixed motive case not arising under Title VII—the decision was more prohibitive to age discrimination claimants. By implication it requires direct evidence, and by express language the decision eliminates any burden shifting substitute for direct evidence.
The Court’s reasoning was highly technical in nature. In the wake of Price Waterhouse v. Hopkins (1989), 490 U.S. 228 (holding that an employer could defeat a claim for discrimination by demonstrating that it would have taken the same action regardless of any impermissible consideration of discrimination) Congress amended Title VII to explicitly authorize a discrimination claim where an impermissible consideration was “a motivating factor.” Noting that no such amendment was made to the text of ADEA, the Court ruled that it would be improper to disregard the differences in the statutes. Accordingly, since Congress did not amend ADEA, there was no statutory text prohibiting an interpretation of a “but-for” causation requirement in age discrimination cases.
Employing the new standard, age discrimination claimants with “some” evidence of age discrimination should be prevented from even reaching a jury unless there is direct evidence that age was the “but-for” cause of the adverse employment action. If, for example, an employee can produce evidence of some impermissible age-based motive, the inability to challenge the expressed “but-for” reason offered by the employer should not permit a jury question. Since the burden-shifting analysis is now rejected under ADEA, it follows that the ability to challenge an employer’s actions by claiming them to be pretextual is now changed. While it remains to be seen how the courts will treat this development, it is nonetheless a burden not shared by any other discrimination claimants, other than age.
In his dissent, Justice John Paul Stevens noted that the Court and Congress had previously rejected the “but for” standard. He stated: “Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.” He also noted that he “[disagreed] not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking.” Given the very slim majority as well as the current composition of Congress it would not ,, be a surprise to see legislation soon proposed that will amend ADEA, and remove the conceptual underpinnings of the Gross decision
Should you have any questions regarding this, or any other Employment Law issue, feel free to contact any of the Practice Area lawyers at Reminger Co. LPA.