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U.S. Supreme Court Imposes Tougher Hurdle for ADEA Plaintiffs

By Brian Harris

In an opinion issued near the end of its most recent term, the U.S. Supreme Court continued its move to the right, increasing the evidentiary burden on age discrimination plaintiffs seeking recovery from their employers.  Gross v. FBL Financial Services Inc. centered around a district court?s jury instructions at trial, where Gross, who alleged he was demoted in favor of a younger employee, introduced evidence showing that the employment decision was at least in part because of his age.  His employer, FBL, defended its decision on the basis that the move was part of a corporate restructuring.  The district court instructed the jury that it must return a verdict for Gross if it found that he proved by a preponderance of the evidence that FBL demoted him and that his age was a ?motivating factor? in the demotion, but that the jury must find for FBL if it proved that it would have demoted Gross regardless of his age.  The jury found for Gross and awarded him $47,000 in lost compensation.

The 8th U.S. Circuit Court of Appeals reversed on appeal, holding that the decision violated the allocation of burden of persuasion principles set forth in the Supreme Court?s decision in Price Waterhouse v. Hopkins.  Thus, in a ?mixed motive? discrimination case like Gross? (that is, where both legitimate and illegitimate criteria motivated the employment decision) Gross needed to show ?direct evidence? of age discrimination for the burden to shift back to FBL to show it would have acted the same way regardless of age.  Because Gross acknowledged that he could not show direct evidence, the 8th Circuit held the jury should only have been instructed to consider whether Gross had proven that age was the determining factor in FBL?s decision ? no burden-shifting instruction was permitted and the burden remained with Gross.

Thus, the question before the Supreme Court on appeal was whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motives, burden-shifting instruction in an ADEA case.  But the court ignored that question altogether, taking a step back to answer the more fundamental question of whether the burden of persuasion ever shifts back to the employer in an ADEA case.

The court held that it does not, noting first that Price Waterhouse ? a Title VII case ? does not control the court?s interpretation of the ADEA.  The court further noted that while Congress amended Title VII in 1991 to explicitly authorize discrimination claims in which an improper consideration was a motivating factor (rather than the sole factor) behind an employment decision, it did not do so as to the ADEA.  Its decision not to do so was plainly intentional, according to the court.  Therefore, a plaintiff can only show an ADEA violation by showing that the employer acted ?because of? her age ? that is, that age was the ?but for? cause of the employer?s action. 

Justice John Paul Stevens? dissent argued that the majority had engaged in unnecessary lawmaking by answering a question not before it.  The dissent?s argument that the majority colloquially, and incorrectly, interprets ?because of? in the ADEA to mean ?but for,? a conclusion rejected by the court and Congress as to Title VII, is unpersuasive in light of the fact that Congress had ample opportunity to create a ?mixed motives? ADEA claim when it amended Title VII in 1991, but chose not to. 

With the decision, the court has handed another victory to employers? counsel, and made it a steeper climb for plaintiffs and their counsel in ADEA cases.

Ryan J. Fleming, a member of Stradley Ronon Stevens & Young's employment and labor practice group, focuses on employment litigation including discrimination and wrongful discharge claims and counsels employers on a variety of employment-related issues.

Blog postings are not legal advice and do not create an attorney-client relationship. Materials posted here represent the views of the poster or commenter and not the views of Stradley Ronon or its clients.

 Ryan J. Fleming
Stradley Ronon Stevens & Young, LLP
www.stradley.com

Full post as published by The Legal Intelligencer Blog on August 19, 2009 (boomark / email).