Douglas W. Bartinik, Wendy J. Lario
On June 18, 2009, the United States Supreme Court rejected the notion that an employee alleging age discrimination may use the so-called “mixed motive” theory to shift the burden of proof to the employer. In
Gross v. FBL Financial Services, Inc., the Court held instead that an employee asserting a claim under the Age Discrimination in Employment Act (ADEA) must prove that age was the “but-for” cause of the employer’s adverse employment action.
This decision establishes a notable difference in the burdens of proof under ADEA and Title VII. Under the Title VII “mixed motive” analysis, once the worker demonstrates that the employer’s adverse action was motivated by a protected characteristic, such as gender, religion, or race, the burden shifts to the employer to demonstrate that it would have taken the same action regardless of age.
In Gross, that is just what happened at the trial level. The court instructed the jury on the mixed motive burden of proof and the jury returned a verdict for the employee. On appeal to the Eighth Circuit, the jury verdict was reversed on the ground that the employee failed to present any “direct evidence” of discrimination, which it interpreted Price Waterhouse to require.
The Supreme Court came to the same result from a different analysis. It held that the “mixed motive” analysis—which was first introduced for use in Title VII cases—was not applicable to ADEA. The Court based its decision primarily on the differences in the language of each of the laws, as well as Congress’ amendment of Title VII as part of the Civil Rights Act of 1991 and the absence of such an amendment to ADEA. As a result of the 1991 amendments, Title VII explicitly authorized discrimination claims in which a protected class was “a motivating factor” for an adverse employment decision. See 42 U.S.C. §2000e–2(m). The ADEA provides, on the other hand, that “[i]t shall be unlawful for an employer … to … discriminate against any individual … because of such individual’s age.” 29 U.S.C. §623(a)(1) (emphasis added). Taking the ordinary dictionary meaning of the term “because of”—i.e., “by reason of” or “on account of”—the Court concluded that a plaintiff suing under the ADEA must prove that age was the “but-for” reason for the employer’s adverse decision.
The Court’s adherence to the “but-for” causation standard, and rejection of the “mixed motive” analysis, in ADEA cases is more than a matter of semantics for employers defending claims of age discrimination. By eliminating the potential for the burden of proof to shift to employers, the Court’s decision will make it more difficult for workers to prevail where there is evidence that age may have been one of the reasons for the challenged adverse action.
This decision was a 5-4 ruling, handed down by the Court’s more conservative justices. So, it will be interested to see if the Democratically-ruled Congress will take legislative action to overturn this decision.