THE MIXED MOTIVES ANALYIS UNDER THE ADEA: THE SUPREME COURT’S DECISION IN GROSS v. FBL FINANCIAL SERVICES, INC.
(Decided June 18, 2009)

Introduction:
In Price Waterhouse v. Hopkins (1989), a splintered Supreme Court addressed the allocation of the burden of persuasion in Title VII cases. A plurality of the Court, along with two concurring Justices, agreed that a plaintiff could prove his or her case by showing that a protected characteristic “played a motivating part in an employment decision,” but that the employer could avoid liability by proving that it would have made the same decision even if it had not taken the impermissible factor into account. In her concurring opinion, subsequently followed by many lower courts for both Title VII and ADEA mixed-motives cases, Justice O’Connor took the position that the mixed-motives framework set forth in the plurality opinion would apply only when a plaintiff presented “direct evidence” of discrimination. Two years later, Congress enacted 42 U.S.C. § 2000e-2(m) as part of the Civil Rights Act of 1991. This provision amended the statute to make “motivating factor” the standard in all Title VII cases. Congress, however, did not similarly amend other anti-discrimination statutes, including the Age Discrimination in Employment Act (“ADEA”). Many courts, however, have permitted mixed-motive instructions to be given to juries in age discrimination cases, but the quantum of proof necessary to obtain such an instruction has been murky.

The Facts:
FBL Financial Group, Inc. (“FBL”) hired Plaintiff, Jack Gross, in 1971. In 2001, Gross held the position of Claims Administration Director and was responsible for overseeing claims processing units at an FBL subsidiary in several states. In 2003, Gross, who then was 54, was reassigned from the position of Claims Administration Director to a job as Claims Project Coordinator. Many of Gross’ duties were transferred to a newly created position – Claims Administration Manager – a position which was given to an individual in her early forties who had previously been supervised by Gross. Gross filed suit under the ADEA asserting that he was demoted because of his age.

The case proceeded to trial. FBL asserted that its decisions were a function of a corporate restructuring. Gross, however, presented evidence suggesting that his reassignment was attributable at least in part to his age. At the close of the trial, despite FBL’s objection, the district court judge gave a mixed-motive jury instruction, and further instructed the jury that “plaintiff’s age need not have been the only reason for defendant’s decision to demote the plaintiff.” The judge rejected FBL’s proposed instruction that Gross’ age was a “determining factor” only if FBL would not have demoted him but for his age. The jury returned a verdict for Gross and FBL appealed.

The Eighth Circuit Court of Appeals reversed the jury’s verdict, finding that the trial court erred in giving the disputed mixed-motive instruction. Consistent with Justice O’Connor’s Price Waterhouse concurrence, the Court of Appeals held that the type of evidence used by the plaintiff to establish that age was a motivating factor determines which party bears the burden of proof. The Eighth Circuit concluded that if a plaintiff presents direct evidence (i.e., evidence showing a specific link between discriminatory animus and the decision at issue) that age was a motivating factor, the defendant bears the burden of proof. If, however, the plaintiff offers only circumstantial evidence that age was a motivating factor, the burden of proof remains with the plaintiff.

The Legal Question:
The question originally posed to the Supreme Court was whether a plaintiff is required to present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case. The Supreme Court, however, instead addressed the issue of whether the burden of persuasion ever shifts to the defendant in an alleged mixed-motive discrimination case under the ADEA. The Court, by a 5-4 vote, held that the burden of persuasion never shifts to the employer regardless of the evidence produced by a plaintiff. Rather, the plaintiff in an ADEA disparate treatment case always must prove that age was the “but-for” cause of the alleged discriminatory adverse action.

The Supreme Court:
In unequivocally holding that a mixed-motive jury instruction is “never proper in an ADEA case,” the Supreme Court parsed the statutory language of both the ADEA and Title VII. The Court specifically relied on the ADEA text providing that an unlawful employment practice is one that is “because of such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis added). The Court concluded that this phrase requires an ADEA plaintiff to prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged employment action. The Court determined that there was nothing in the ADEA’s text to change the ordinary allocation of the burden of persuasion and that the burden thus never shifts to the party defending an ADEA disparate-treatment case: “Hence, the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action.”

In reaching this result, the Court reasoned that Congress had not added language to the ADEA that would permit a mixed-motive claim as it had in regard to Title VII. Congress amended Title VII in 1991 to allow a plaintiff to establish discrimination by demonstrating that one of the protected characteristics in that statute was simply a “motivating factor” for an employment decision. The Court noted, however, that Congress did not add a motivating factor provision to the ADEA when Title VII was amended, even though Congress simultaneously amended the ADEA in several other ways. Because Congress did not similarly amend the ADEA, the Supreme Court determined that Title VII is materially different from the ADEA; therefore, the Court’s “interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace and Price Waterhouse.” The Court also noted that, in retrospect, it has become apparent that the Price Waterhouse burden-shifting framework is problematic, with courts finding it particularly difficult to formulate appropriate instructions explaining the framework.

The dissenters objected to the Court addressing a question other than the one in the original petition for certiorari, and stated that the Court simply should have held that a plaintiff need not present direct evidence of discrimination to obtain a mixed-motives instruction. The primary dissent opined that the Court in Price Waterhouse had rejected exactly the statutory construction that the Court applied in this case, requiring a plaintiff to prove “but-for” causation. Moreover, the dissent argued that the majority’s analysis of congressional modifications to Title VII were improper and that the Court’s previous Title VII cases, such as Price Waterhouse and Desert Palace (holding that direct evidence is not necessary to meet a plaintiff’s burden in a mixed-motive case under Title VII), should control the result in this case.

From the Employer’s Perspective:
The Supreme Court’s decision is a win for employers who must defend against age discrimination claims under the ADEA. This decision prohibits a plaintiff asserting an age discrimination claim from shifting the burden of persuasion to the employer to prove that it would have made the same decision without regard to the plaintiff’s age. The Court has left no doubt, based upon the statutory language in the ADEA, that it is incumbent upon the plaintiff to prove that the adverse employment action actually occurred because of his or her age.

From the Employee’s Perspective:
The result of the Gross decision is that an ADEA plaintiff can no longer obtain a burden-shifting jury instruction and will retain the burden of persuasion to prove that any adverse employment action occurred because of his or her age. Although the Court states that “[t]here is no heightened evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion . . .” it has created a differing standard for victims of age discrimination. In doing so it has resurrected the “but for” standard previously rejected by the Supreme Court and by Congress when it amended Title VII in 1991. As Justice Stevens notes in his dissent given this history and the most natural reading of the ADEA’s “because of” text which mirrors that of Title VII, “it is particularly inappropriate . . . to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.”

This article was prepared by the Section’s Equal Employment Opportunity Committee with the assistance of Alva Cross Hughes of Fisher & Phillips, LLP (Tampa, FL), who represents management, and Ossai Miazad of Outten & Golden (New York, NY), who represents employees.

The Supreme Court Speaks:
The Impact of the Ricci and FBL Financial Services Decisions

Date: Tuesday, July 14, 2009

Format: Teleconference and Live Audio Webcast

Duration: 90 minutes

Sponsors: The American Bar Association Section of Labor and Employment Law and the ABA Center for Continuing Legal Education

Registration Options

Individual Online Registration

Group Online Registration

Register by Phone
800.285.2221
Monday - Friday
8:30 AM - 6:30 PM Eastern
Event Code: CET9FBL

Register by Mail
Please allow a minimum of two weeks for delivery and processing

Tuition
$150 General Public
$125 ABA Members
$85 Section of Labor and Employment Law Members
$85 Government & Public Interest Lawyers
$75 Young Lawyers Division Members
$60 Each additional registrant using the same phone line
All participants must register for the program.

Time
10:00 AM-11:30 AM Pacific
11:00 AM-12:30 PM Mountain
12:00 PM-1:30 PM Central
1:00 PM-2:30 PM Eastern

Program Description
The Supreme Court’s decisions in Ricci v. DeStefano and Gross v. FBL Financial Services, Inc. will likely have far-reaching implications. Ricci, decided by a panel which included Supreme Court nominee Judge Sonia Sotomayor, raises questions concerning the steps employers may take when avoidance of discrimination against one group may mean discrimination against another group. In FBL, the Court was called upon to decide whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motive instruction in a non-Title VII discrimination case. Our expert panel will discuss the holdings in these important decisions, and the impact on workers and employers alike.