Gross v. FBL Financial Services, Inc: Supreme Court’s Ruling Makes it Harder For Older Workers to Prove Age Bias
By Victoria Ni, Public Justice Staff Attorney
Striking a blow to access to justice, the U.S. Supreme Court made it harder for a plaintiff to prove age discrimination in Gross v. FBL Financial Services, Inc, ___ U.S. ___, 129 S.Ct. 2343 (2009). On June 18, 2009, the Court held, 5 to 4, that in disparate treatment cases under the Age Discrimination in Employment Act (ADEA) the burden of proof as to whether discrimination caused the challenged employment decision never shifts to the employer. Instead, the burden always remains with the plaintiff to prove that age was the decisive factor in an adverse employment decision.
The Court’s opinion wiped away the common understanding among the courts of appeal that the burden did shift to the employer to disprove causation if the plaintiff produced some evidence that age was one of a number of motivating factors – a so-called “mixed motive” case. These courts regularly applied in age discrimination cases the same burden-shifting approach used for cases under Title VII of the Civil Rights Act of 1964 alleging discrimination on the basis of race, color, religion, sex, or national origin. But the Supreme Court found age discrimination plaintiffs to be subject to tougher standards.
The plaintiff in the case was Jack Gross, a long-time employee of a property-casualty insurer. For 12 years, he rose through the ranks, and, in 1999, was promoted to the position of Claims Administration Director. But when Gross was 54 years old, in 2003, he was moved to the position of Claims Project Coordinator in what he considered to be a demotion and which, he alleged, resulted in a substantial loss of income. Gross sued in federal court under the ADEA, alleging that he had been demoted because of his age. The company claimed that Gross was reassigned for a number of legitimate reasons, including that a reorganization effectively eliminated his old job and that there had been complaints about him by other workers. After a five-day trial, a jury found in Gross’ favor, awarding him $46,945 in lost compensation.
On appeal, the company challenged the jury instructions given at trial. The U.S. Court of Appeals for the Eighth Circuit overturned the jury verdict, holding that the trial court should not have given a “mixed motive” instruction, or one that required the defendant to prove it would have taken the same action in the absence of bias against age. Interpreting the fractured majority decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) – a case establishing a burden-shifting framework for “mixed motive” cases under Title VII – the Eighth Circuit found that burden shifting was only allowed where the plaintiff had adduced “direct evidence that an illegitimate factor played a substantial role in an adverse employment decision.” Gross v. FBL Financial Services, Inc., 526 F.3d 356, 359 (8th Cir. 2008) (emphasis in original). “Direct evidence,” the court explained, was “evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action. Id. (citation and internal quotations omitted). Since Gross conceded that he had not presented “direct evidence” of discrimination, the court reasoned, a mixed motive instruction was not proper. Id. at 360.
The Supreme Court granted certiorari review on a question having to do with what kind of evidence was needed to trigger burden-shifting, not whether the burden should shift at all. The only question presented was whether a plaintiff must present “direct evidence” of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case. Instead, however, the Court took up the question of whether the burden of proof should “ever shift[] to the party defending in an alleged mixed-motives discrimination claim brought under the ADEA” and answered it in the negative.
The majority opinion in Gross has a two-part holding: first, that there is no burden-shifting in ADEA disparate treatment cases, and second, that the plaintiff must show that discrimination was outcome determinative. On the first point, Justice Thomas found that the burden-shifting framework of Price Waterhouse did not apply to ADEA claims, and the burden of proof remained with the plaintiff regardless of whether there were “mixed motives” or not. Gross, 129 S.Ct. at 2349, 2351. He reasoned that the text of the ADEA does not expressly authorize mixed motives claims, and, unlike Title VII, its language had not been amended following Price Waterhouse to impose liability where illegal discrimination was only one of a number of “motivating factor[s].” Id. at 2349-50 (comparing the language of 42 U.S.C. §2000e-2(m) with 29 U.S.C. § 623(a)(1)). The burden of persuasion typically falls on the party seeking relief, and Justice Thomas saw no reason to depart from that general rule. Id. at 2351. He noted also that because judges and juries have found the burden-shifting framework to be difficult to apply, extending such a framework to the ADEA seemed unwarranted. Id. at 2352.
On the second point, Justice Thomas found that a plaintiff 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.” Gross, 129 S.Ct. at 2352. For this he consulted the dictionary to interpret the ADEA’s relevant language: “It shall be unlawful for an employer . . . [to] discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. 42 U.S.C. § 623(a)(1) (emphasis added). He found that “because of” is ordinarily defined as “by reason of” or “on account of,” and thus concluded that ADEA liability required proof that discrimination – and not some other reason – was the “but-for” cause. Gross, 129 S.Ct. at 2350.
Justice Stevens wrote a dissenting opinion, joined by Justices Souter, Ginsberg, and Breyer, that characterized the majority as engaging in “an unabashed display of judicial lawmaking.” Id. at 2358 (Stevens, J., dissenting). The main source of disagreement was whether liability was established where discrimination was “a” cause rather than “the” cause.
First, Justice Stevens criticized the majority as irresponsible for addressing a question that was raised for the first time in the merits brief filed by the respondent and not briefed by interested amici curiae, including the United States. Id. Second, he took issue with the “but-for” causation standard, arguing that “the most natural reading of the text [of the ADEA] proscribes adverse employment actions motivated in whole or part by the age of the employee.” Id. at 2354 (emphasis added). Third, he argued that Price Waterhouse’s interpretation of Title VII should apply in the ADEA context because the substantive provisions of the ADEA were taken directly from Title VII. The plurality of Price Waterhouse, he explained, had rejected a “but for” interpretation and concluded that the words “because of” in Title VII made employment decisions illegal where a mixture of illegitimate and legitimate factors were considered. Id. Fourth, Justice Stevens pointed out that Congress superseded Price Waterhouse in Title VII cases by amending the statute to incorporate some, but not all, of the standards enunciated in the case. Congress did not, however, amend corresponding provisions in the ADEA. He said that this meant Price Waterhouse still governed in ADEA cases. Id. at 2356. Indeed, he argued, that the “resurrection of the but-for causation standard is unwarranted,” since Congress emphasized at the time of the Title VII amendments that liability for decisions taken for both legal and illegal reasons was consistent with its original intent in enacting Title VII. Id. at 2356-57. Finally, he observed that the majority’s holding would unnecessarily complicate cases in which both the ADEA and Title VII are at issue. Id.
Aside from erecting what may be an insurmountable barrier for ADEA plaintiffs who now must prove that age discrimination – above all other stated motivations – was the dispositive factor causing the adverse action, Gross has other implications. In footnote 4, the Court confirmed that the category of evidence adduced by the ADEA plaintiff to prove his or her case was not important – either direct or circumstantial evidence of discrimination will do. Id. at 2351 n.4. But it also creates new questions for the lower courts: Can Title VII cases on other issues be used to interpret the ADEA? Does the Price Waterhouse framework apply to retaliation cases and other similarly-worded federal – and, perhaps, state – civil rights statutes? See, e.g., 42 U.S.C. § 12112(b). What happens when age discrimination is alleged along with other forms of discrimination, since the standards are now different? Luckily, these questions will become moot if, as many predict, Congress takes swift action to overturn the decision.
about the author
Victoria W. Ni is a Staff Attorney in the Oakland, CA office of Public Justice. Since she joined the firm in 2000, Vicky has worked on a variety of cases brought to protect consumers’ and victims’ rights, rights of the disabled, free speech, and equal opportunity in athletics and in the workplace. Her litigation work includes representation of female employees, wrongfully arrested peaceful protesters, disabled travelers, and a young girl who had been denied an opportunity to play baseball for her high school.