In a 5-4 decision, the U.S. Supreme Court recently rejected the mixed-motive framework for disparate treatment claims filed under the Age Discrimination in Employment Act (ADEA). In reaching this pivotal decision, the Court made it clear that the analysis for age discrimination isn’t subject to the one-size-fits-all mixed-motive analysis applied in Title VII of the Civil Rights Act of 1964 cases.
Rather, the ADEA’s statutory language calls for a showing that age was “the” motivating factor rather than “a” motivating factor in proving disparate treatment. The ruling is a victory for employers because it requires employees to prove by a preponderance of the evidence that age was the reason for the adverse employment decision, as opposed to simply a reason.
Facts
Jack Gross began working for FBL Financial Group in 1971. By 2001, he was the claims administration director. At age 54, he was reassigned to claims project coordinator. As a result, many of his duties were allocated to the claims administration manager — a newly created position filled by a female coworker in her 40s whom Gross had previously supervised. Although both positions were compensated equally, Gross considered his new job a clear demotion.
In spring 2004, Gross filed suit in federal court, alleging that his reassignment — based in part, he believed, on his age — violated the ADEA. FBL countered by arguing that the reassignment was part of its corporate restructuring and that the position was a better fit for Gross’ skill set.
At trial, the jury was instructed under the mixed-motive standard applied in Price Waterhouse v. Hopkins , which meant if Gross proved that age was a motivating factor in the reassignment decision, even though other evidence showed that FBL still would have demoted him despite his age, it should rule in his favor. The jury found for Gross and awarded him $46,945 in lost wages.
FBL appealed the lower court’s decision to the Eighth Circuit, arguing that the jury was incorrectly instructed under the Price Waterhouse mixed-motive standard because it was undisputed that Gross presented only circumstantial evidence (as opposed to direct evidence) of discrimination. The Eighth Circuit agreed and sent the case back for a new trial. Gross appealed the appellate court’s decision to the U.S. Supreme Court.
Supreme Court Takes a Second Look
The Court started by reexamining its decision in the Price Waterhouse case, which launched the mixed-motive doctrine. It explained that the doctrine applies to Title VII claims when the challenged employment decision may have been “the product of a mixture of legitimate and illegitimate motives.” In the Price Waterhouse decision, the Court held that once an employee shows that an improper motive played a part in the employment decision, the employer may avoid liability only if it can prove that it would have made the same decision regardless of the improper motive.
The Supreme Court rejected the application of the mixed-motive analysis to ADEA claims, holding that an employee who files a disparate treatment claim under the ADEA must prove by a preponderance of the evidence (direct or circumstantial) that age was the “but for” cause of the challenged employment decision. The Court went on to explain that “the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when [the employee] has produced some evidence that age was one motivating factor in that decision.”
In reaching its conclusion, the Supreme Court relied heavily on the language of the statute, noting that while Title VII (by virtue of its 1991 amendments) explicitly authorizes claims in which a discriminatory motive was a motivating factor in the employment decision, the same is not true of the ADEA. Rather, when Congress failed to amend the ADEA at a time when Title VII was being contemporaneously amended, the Court presumed it acted intentionally.
Differing Opinions
Justice Clarence Thomas, writing for the majority, noted that the ADEA doesn’t authorize mixed-motive claims. To the contrary, the Act states, “it shall be unlawful for an employer . . . to fail or refuse to hire or to discharge an individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”
Justice Thomas gave great attention to the “because of” language in the ADEA, looking at various interpretations of the phrase and finding that “the ordinary meaning of the ADEA’s requirement that an employer took action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.” Thus, the Court concluded that an employee filing an ADEA claim must prove that “age was the ‘but for’ cause of the employer’s adverse action.”
The dissent was particularly critical of the majority’s decision, arguing that “the most natural reading of the [ADEA’s] test prohibits adverse employment actions motivated in whole or in part by the age of the employee.” The dissent went on to note that the high court had been faced with the very same “because of” language when crafting the Price Waterhouse decision a year ago and nevertheless chose to implement the mixed-motive framework. The dissent concluded by characterizing the majority’s opinion as an “utter disregard of our precedent and Congress’ intent.” Gross v. FBL Financial Services, Inc. , 557 U.S. ___ (2009).
Bottom Line
This decision is a clear victory for employers — at least for now — because it makes it harder for employees to prove age discrimination under the ADEA. However, under the present administration, we will likely see congressional reaction resulting in the revival of the mixed-motive standard for age discrimination claims. Until then, employees will be forced to prove that age was the motivating reason for the challenged employment action.