U.S. Supreme Court Declines to Ease Plaintiffs’ Burden of Proof in Age Discrimination Cases
On June 18, 2009, in a 5-4 decision, the U.S. Supreme Court made it significantly more difficult for plaintiffs to prevail in age discrimination suits under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (“ADEA”). In Gross v. FBL Financial Services, Inc., 557 U.S. __ (2009), the Court ruled that the “mixed motive” theory of recovery in employment discrimination cases is not applicable to claims under the ADEA. It is now clear that ADEA plaintiffs, in order to prevail, must prove that their age was the “but-for” cause of the employer’s adverse action; it is not enough for plaintiffs to show that age was a motivating factor in the employer’s decision. Moreover, the Court also ruled that ADEA plaintiffs at all times bear the burden of proof; unlike the mixed-motive analysis applied to other types of discrimination cases, the burden of proof in an age case will not shift to the employer even if the plaintiff proves that age was a motivating factor in the employer’s decision.
Background on the “Mixed Motive” Theory of Recovery
Victims of employment discrimination may proceed under various theories of recovery. One basis of recovery is a showing that the employer’s adverse action (e.g., a termination) was motivated at least in part by the plaintiff’s protected characteristic (such as gender, race, etc.), even if was also motivated by other, lawful considerations. This theory, known as the “mixed motive” analysis, was initially recognized in the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a case involving allegations of sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), the federal statute which prohibits discrimination on the basis of sex, color, race, religion and national origin. The Price Waterhouse Court ruled that once a plaintiff has submitted “direct and substantial” evidence that a discriminatory reason played at least some part in the employer’s decision, the employer will be liable unless it shows by a preponderance of the evidence that it would have made the same decision even in the absence of discrimination. The mixed motive theory was modified and codified in Congress’s subsequent amendments to Title VII. (A detailed discussion of the mixed motive theory can be found on this website: Supreme Court Expands Availability of “Mixed Motive” Defense to Employers Sued for Discrimination.)
The Gross Majority’s Rejection of the Mixed Motive Theory of Recovery in ADEA Cases
In Gross, the specific question presented to the Supreme Court related to the extent and nature of proof an age discrimination plaintiff would have to present in order to proceed under a mixed motive analysis and shift the burden to the employer. The Court’s majority, however, did not reach or answer this question, because it ruled more broadly that recovery under a mixed motive theory is never appropriate in age discrimination cases under the ADEA.
The Gross Court’s holding was based on a comparison of the text of the ADEA to that of Title VII. The ADEA provides that it shall be unlawful for an employer to discriminate against an individual “because of such individual’s age.” (emphasis added). Title VII, however, was amended in 1991 to specifically provide that an individual can establish discrimination 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.” (emphasis added). The Gross Court focused on this amendment to Title VII, and the absence of a conforming amendment to the ADEA, particularly because Congress made other amendments to the ADEA at the time it chose to amend Title VII to include this language regarding the employer’s motive.
In light of the differences in the text and legislative history of the ADEA and Title VII, the Gross Court declined to interpret the ADEA in accordance with the Court’s earlier Title VII mixed-motive decisions (e.g., Price Waterhouse). The Court ruled instead that the text of the ADEA did not authorize a mixed motive recovery. The Court reasoned that the words “because of . . . age” in the ADEA should be interpreted, according to their plain meaning, to mean “by reason of” or “but-for” the employee’s age. The Court, therefore, ruled that an ADEA plaintiff must prove that his or her age was the “but-for” cause of — not merely a motivating factor in — the employer’s alleged discriminatory action. The Court also held that, unlike in a mixed motive case under Title VII, the burden of proof in an ADEA case will not shift to the employer, even when age is shown to be a motivating factor.
The Gross Dissent
Four Supreme Court justices dissented in Gross and sharply criticized the majority’s opinion. These dissenting justices argued, among other things, that the majority “engage[d] in unnecessary lawmaking” by not answering the question that was submitted for its review and by instead answering a different question, which the parties had not had an opportunity to brief. The dissent also argued that the ADEA should be interpreted in the same manner as Title VII, under which the Court previously established the mixed-motive theory of recovery.
Impact of the Gross Holding
The holding in Gross is being hailed by commentators as a “win” for employers. It remains to be seen, however, how long-lived this victory for employers will be. It is entirely possible that Congress, in response to the ruling in Gross, may choose to amend the ADEA and add language that it previously added to Title VII regarding an employer’s discriminatory motives, effectively overturning the Gross decision and strengthening and expanding the application of the mixed motive theory. We will continue to monitor these events, and provide future updates as appropriate.