In a 5-4 decision, the U.S. Supreme Court held that employees bringing discrimination claims under the Age Discrimination in Employment Act (the “ADEA”) must prove that age was the “but-for” cause of the adverse employment action, and not just a “motivating factor.” The Court rejected the previously recognized “mixed-motive” standard, which had shifted the burden of proof to a defendant employer in discrimination cases under Title VII of the Civil Rights Act of 1964 (“Title VII”). Going forward, employees suing for age discrimination under federal law will bear a different and more difficult burden of proving their claim than the burden of proof in other types of (non-age) discrimination claims under federal law.
By their terms, the ADEA and Title VII prohibit employers from discriminating against employees “because of” their age or other protected characteristics, respectively. Title VII was amended to provide that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice” (43 U.S.C. § 2000e-2(m)) (emphasis added). The ADEA was not amended likewise, and does not contain this language, although — as the Supreme Court noted in its decision — Congress made other amendments to the ADEA contemporaneously with the Title VII amendments.
The case is Gross v. FBL Fin. Servs. Inc., U.S., No. 08-441. Gross claimed that FBL Financial Group, Inc. (“FBL”) had demoted him due to his age, in violation of the ADEA. The trial court instructed the jury that Gross had to prove by circumstantial or direct evidence that his age was “a motivating factor” in FBLs demotion decision. The burden then shifted to FBL to prove that Gross’s age was not the determining factor, and that it would have demoted Gross regardless of his age. The jury rendered a verdict in favor of Gross. The U.S. Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that, under Price Waterhouse v. Hopkins, a Supreme Court decision in a Title VII case, plaintiffs are required to present direct evidence that an illegitimate criterion motivated the adverse employment action in order to shift the burden of proof to the defendant. The Eighth Circuit reasoned that because Gross did not have such direct evidence, he was not entitled to an instruction shifting the burden of proof to FBL, and that the jury should have been instructed to rule for Gross only if he proved that age was “a determining factor” in the employment decision.
The Supreme Court went even further, vacating the Eight Circuit’s decision, to hold that a plaintiff bringing an ADEA disparate treatment discrimination claim must prove, by a preponderance of the evidence, that age was the but-for cause of the challenged adverse employment action. The Court held that the mixed-motive analysis in Price Waterhouse simply does not apply in ADEA cases, and, therefore, the burden of persuasion does not shift to the employer to show it would have taken the same action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor for the decision.
In deciding that the burden of proof never shifts to the defendant in an alleged mixed-motive discrimination claim under the ADEA, Justice Thomas, writing for the majority, stated that the ADEA, unlike Title VII, “does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor” and that Congress “neglected to add such a provision to the ADEA” when it amended Title VII in 1991 to add Section 2000e-2(m). The ADEA prohibits employment discrimination “because of” the individual’s age, Thomas wrote, with the result that “the ADEA’s requirement that an employer took adverse action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.” The Court thus held that “to establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.”
The Supreme Court’s decision alters the landscape of federal age discrimination claims, making the employee’s burden of proof considerably more difficult. Yet, there is some question as to how long the change will last. Already there is speculation that Congress will overrule the opinion through legislation, just as it did in January with the Lilly Ledbetter Fair Pay Restoration Act. The January legislation responded to the Supreme Court’s May 2007 ruling in Ledbetter v. Goodyear Tire & Rubber Co. Indeed, Senate Judiciary Committee Chairman Senator Patrick Leahy reportedly weighed in within hours of the Gross decision, stating: “The decision today reminds me of the Court’s wrong-headed ruling in” Ledbetter, in which “these same five justices. . .misconstrued an employment discrimination statute. . .and also overturned a jury verdict in favor of the employee.” For the time being, however, employers can enjoy the easing of the burden in ADEA discrimination claims.
For more information on this alert or any other labor and employment issues, please contact any of the lawyers listed below:
John Adkins, firstname.lastname@example.org, 617.951.8551
Louis Rodriques, Co-chair, email@example.com, 617.951.8340
Los Angeles/Orange County
Jacqueline Aguilera, firstname.lastname@example.org, 213.229.8439
Debra Fischer, email@example.com, 213.680.6418
James Severson, firstname.lastname@example.org, 415.393.2242
Douglas Schwarz, email@example.com, 212.705.7437
Mie Fujimoto, firstname.lastname@example.org, 81.3.6721.3138