The Supreme Court Holds that Mixed-Motives Claims are not Permitted under the |
The ADEA prohibits employers from discriminating against an individual “because of such individual’s age.” In a typical employment discrimination case, whether brought under the ADEA or other anti-discrimination statute, the plaintiff proves intentional discrimination by showing that his age made a difference, or was determinative, to the employer. This can be accomplished directly, or indirectly with evidence that the employer’s proffered non-discriminatory reason for the employment decision was false, or a pretext for discrimination. Importantly, the burden of proof, or burden of persuasion, remains at all times on the plaintiff. Price Waterhouse, an action under Title VII, recognized a species of employment discrimination cases in which there is evidence that the employment action was the product of lawful (e.g., poor performance or excessive absenteeism) and unlawful (e.g., sex) considerations. Similar to the ADEA, Title VII declares unlawful discrimination against an individual “because of such individual’s race, color, religion, sex, or national origin.” Under Price Waterhouse, if the plaintiff proves that her sex (or other protected characteristic) played a motivating part in the employment action, the employer is liable unless the employer proves that it would have taken the same action without regard to the plaintiff’s sex. Thus, the plaintiff in a mixed-motives case need only show that her sex somehow motivated the employment decision. The burden then shifts to the employer to essentially disprove discrimination. Congress in 1991 amended Title VII by expressly permitting plaintiffs to establish discrimination claims by showing “that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Congress also restricted the employer’s affirmative defense by providing that the employer’s proof that it would have taken the same action merely limits the remedies available to the plaintiff; it does not relieve the employer of liability. Congress has not, however, amended the ADEA to allow a plaintiff to demonstrate discrimination by showing age was a motivating factor. Against the backdrop, the Court decided Gross. In Gross, Jack Gross, age 53, was reassigned from his position of claims administration director to claims project coordinator. Simultaneously, his employer, FBL, transferred many of his duties to a newly-created position that the employer staffed with a younger worker. Claiming the reassignment constituted a demotion, Mr. Gross filed in federal court a discrimination lawsuit under the ADEA. At trial, Mr. Gross offered evidence suggesting that his reassignment was based, at least in part, on his age. On the other hand, FBL offered evidence that it reassigned Mr. Gross as part of a corporate restructuring and because the new position better suited Mr. Gross’s skills. Because Mr. Gross’s case purportedly constituted a mixed-motives case, the trial court gave a common mixed-motives jury instruction. In this regard, the court instructed the jury to find in favor of Mr. Gross if Mr. Gross proved that FBL demoted him and that his age was a “motivating factor” in FBL’s decision to demote him. Age was a motivating factor, explained the court, if it played a part or role in FBL’s decision. But if FBL proved that it would have demoted Mr. Gross regardless of his age, the court instructed the jury to return a verdict for FBL. The jury sided with Mr. Gross and awarded him damages. FBL appealed to the court of appeals, which reversed the trial court. The appellate court concluded that the mixed-motives instruction was inappropriate because Mr. Gross failed to offer “direct” evidence that his age actually motivated FBL to demote him. Instead, the trial court should have instructed the jury on the burden of proof applicable in traditional non-mixed-motives cases: Mr. Gross prevails only if he proved that his age was the determinative factor in FBL’s decision. The Supreme Court agreed to review the case in order to decide whether a plaintiff must offer direct evidence of discrimination in order to obtain a mixed-motives instruction in an ADEA case. The Court did not reach that question, however, because the Court concluded that a mixed-motives instruction is never proper in an ADEA case. First, the Court rejected Mr. Gross’s argument that Price Waterhouse governed the Court’s interpretation of the ADEA. Price Waterhouse involved the interpretation and application of Title VII. But the Court had never extended Price Waterhouse’s “motivating factor” and burden-shifting framework to the ADEA, and it declined to do so in Gross. Moreover, the text of Title VII and the ADEA are different such that construction of the former does not necessarily control construction of the latter. The Court found it significant that when Congress amended Title VII to add the “motivating factor” provision, Congress did not add such a provision to the ADEA even though in the same legislation Congress amended the ADEA in other ways. “We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA.” Therefore, Price Waterhouse was not controlling. Second, the Court examined the text of the ADEA to determine whether the ADEA permits mixed-motives age discrimination claims. The Court concluded it does not. The ADEA prohibits employers from discriminating against an individual “because of such individual’s age.” Construing the phrase “because of” age consistent with its ordinary meaning, the Court determined that the ADEA requires a showing “that age was the ‘reason’ that the employer decided to act.” As such, to prevail in a claim for intentional discrimination, the plaintiff “must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Moreover, applying the default rule that “plaintiffs bear the risk of failing to prove their claims,” and relying on its previous decisions allocating the burden of proof in ADEA cases, the Court held that the burden of proof remains on the plaintiff to prove age discrimination and never shifts to the employer. Accordingly, the Court remanded the case for further proceedings. Gross is significant for employers because it eliminates mixed-motives cases from the ADEA context. Consistent with the statutory text of the ADEA, Gross raises the quantum of evidence plaintiffs must offer in all age discrimination cases. No longer will it suffice for a plaintiff to introduce evidence that age was merely a consideration or motivating factor in the employment decision, especially when there is persuasive or compelling evidence that legitimate factors also influenced the employment decision. Now, the plaintiff must prove that his age was the reason for the employment decision; that, but-for his age, the employment decision would have been made in his favor. This construction comports with the ADEA’s prohibition on discrimination against an individual “because of such individual’s age.” In addition, Gross relieves employers of the burden of proving that they would have taken the same action without regard to the plaintiff’s age. In every ADEA case, the ultimate burden of proof or persuasion is allocated to the party on whom the burden properly belongs – the plaintiff, who must prove that age was the “but-for” cause of the employment action. To be sure, employers in discrimination cases have always justified their employment decisions by introducing evidence of non-discriminatory reasons. In that connection, nothing changes after Gross. The critical difference, however, is that employers no longer bear the risk of failing to persuade the jury that their actions were taken for lawful reasons unrelated to a protected characteristic. Rather, after Gross, plaintiffs bear the risk of failing to prove that their age was the but-for cause of the employer’s action. Going forward, employers will want to continue documenting the reasons for their personnel decisions, such as a termination. When they are hit with an age discrimination lawsuit, employers can marshal evidence, documents along with testimony from the relevant decisionmaker, to show that the employer acted for lawful reasons totally unrelated to the plaintiff’s age. This will undermine the plaintiff’s ability to prove that his age was the reason for the employment action. For example, an employee terminated for poor performance or misconduct, where such poor performance or misconduct is substantiated by the employer, will have a difficult time proving but-for his age, the employment decision would have gone in his favor. Importantly, the employer does not bear the risk of convincing the jury that it acted for lawful, non-discriminatory reasons. The employer need only discredit the plaintiff’s allegation that his age caused the adverse employment action. The impact of Gross, however, may be short-lived. There is nothing to prevent Congress from amending the ADEA, just as it amended Title VII, to permit age discrimination claims based simply on a showing that age was a motivating factor in the employment decision. And given the current President’s and Congress’s demonstrated affinity for employees and their willingness to abrogate Supreme Court decisions they perceive as infringing the rights of employees (i.e., Lilly Ledbetter Fair Pay Act), it is not unreasonable to expect a legislative response to Gross. The timing of any legislative response will likely depend on the volume of boos Gross is sure to provoke among pro-employee constituencies. Until that time arrives, however, Gross is the law and will govern lawsuits under the ADEA. If you have questions about Gross, or other employment law issues, please contact Todd J. Shill at (717) 231-6665 or tshill@rhoads-sinon.com. |
