ADEA Does Not Authorize Mixed-Motives Age Discrimination Case: Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009)
In a recent 5-4 opinion authored by Justice Thomas, which proved to be a victory for employers, the Supreme Court held that the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a), does not authorize a mixed-motives age discrimination claim. Instead, the Court ruled that an employee bringing a disparate treatment claim against an employer based on age must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged employment action. Unlike in a discrimination case brought under Title VII of the Civil Rights Act of 1964, the burden of persuasion under the ADEA at no time shifts to the employer to show that it would have taken the action regardless of age. This holds true even when a plaintiff has produced some evidence that the employer’s decision was motivated, in part, by age.
Petitioner Jack Gross began working for FBL Financial Group, Inc. in 1971. In 2003, Gross, then age 54, was reassigned from his position as Claims Administration Director to a new position as Claims Project Coordinator. At the time of the reassignment, FBL also transferred many of Gross’s job responsibilities to a younger employee who Gross previously supervised. While both employees received the same compensation from FBL, Gross considered the reassignment an unlawful demotion. Gross filed suit in the United States District Court for the Southern District of Iowa, alleging that his reassignment violated the ADEA. At trial, the District Court judge instructed the jury to enter a verdict for Gross if he proved, by a preponderance of the evidence, that he was demoted, and that his age was a motivating factor in FBL’s demotion decision. Upon such proof, the judge instructed the jury that the burden would then shift to FBL to show that it would have demoted Gross regardless of his age.
The jury returned a verdict for Gross. FBL appealed to the United States Court of Appeals for the Eighth Circuit, which reversed and remanded the case based on what it viewed as incorrect jury instructions. The Eighth Circuit’s decision turned on the improper allocation of the burden of persuasion. Finding the burden-shifting framework of Title VII controlling, as set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Eighth Circuit held that the jury should have been instructed that Gross needed to present direct evidence sufficient to support a finding that age actually motivated FBL’s adverse employment action against him. Only then would the burden shift to FBL.
On certiorari, the Supreme Court held that the burden-shifting framework in Title VII cases does not apply in the context of the ADEA. In ADEA cases, the burden of proving causation remains with the employee and never shifts to the employer. The Court’s decision was based, in part, on the statutory construction of the ADEA, which provides that it is unlawful for an employer to discriminate against an employee “because of” such individual’s age. The Court read the ADEA’s “because of” language as requiring an employee to prove that age was the “but-for” cause of the employer’s adverse decision. Accordingly, any lesser showing of proof – such as that the employer was motivated in part by the employee’s age – is insufficient. In reaching its decision, the Court also analyzed the divergent legislative histories of Title VII and the ADEA. While Congress amended Title VII to expressly allow a plaintiff to establish discrimination in a mixed-motives setting, contemporaneous Congressional amendments to the ADEA did not contain such language regarding mixed-motives. “When Congress amends one statutory provision but not another, it is presumed to have acted intentionally.”
The Gross decision will no doubt assist employers in defending ADEA claims, as it makes clear that plaintiffs alone bear the burden of persuasion in age discrimination actions