Supreme Court Shifts Burden to Employee on Age Discrimination Claims

Declining to import the mixed-motives burden-shifting rubric applied under Title VII of the Civil Rights Act of 1964, a divided Supreme Court ruled that a plaintiff claiming disparate treatment under the Age Discrimination in Employment Act of 1967 (ADEA) must establish by preponderance of evidence that age was the ‘“but-for’ cause” of the adverse employment action challenged. Even when the plaintiff has produced some evidence that age was one motivating factor in the employer’s decision, the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of age, held the Court. Justice Stevens, joined by Justices Souter, Ginsburg and Breyer, dissented. Writing separately, Justice Breyer also dissented and was joined by Justices Souter and Ginsburg. (Gross v FBL Fin Servs, Inc, USSCt, Dkt 08-441. Decided June 18, 2009.)

Background. A 54-year-old employee sued his employer, alleging that it demoted him because of his age in violation of the ADEA. The district court used a mixed-motives jury instruction, charging the jury that the employee had the burden to prove that: (1) his employer demoted him; and (2) age was a motivating factor in the demotion decision. The court also instructed the jury that the verdict must be for the employer if it had been “proved by a preponderance of the evidence that [the employer] would have demoted [the employee] regardless of his age.” The jury returned a verdict in favor of the employee, awarding lost compensation in the amount of $46,945.

Appeals court ruling. The Eighth Circuit Court of Appeals reversed the judgment and remanded the case for a new trial, holding that the jury was incorrectly instructed under the standard of Price Waterhouse v. Hopkins, 490 US 228 (1989). In Price Waterhouse, a splintered opinion, the Supreme Court addressed the proper approach to causation when an employer is motivated by both permissible and impermissible considerations in making an employment decision. Six Justices agreed that once a Title VII plaintiff shows that discrimination was a "motivating" or "substantial factor" in an employer’s adverse action, the burden of persuasion then shifts to the employer to show that it would have taken the same action regardless of the impermissible consideration. Justice O’Connor went further, holding that to shift the burden of persuasion to the employer, the plaintiff had to offer "direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision."

The Eighth Circuit applied this standard, holding that the employee was required to present "[d]irect evidence …sufficient to support a finding by a reasonable fact-finder that an illegitimate criterion actually motivated the adverse employment action." Upon presentation of such direct evidence, the burden was shifted to the employer to persuade the fact-finder that it was "more likely than not that the decision would have been the same absent consideration of the illegitimate factor." But the jury instruction in this case had erroneously shifted the burden of persuasion from the employee to his employer upon proof by any evidence – direct or otherwise – that age was a “motivating factor” in the employment decision. Since the employee had failed to present the direct evidence required, he should have been held to the burden of persuasion that applies to non-mixed-motives claims, held the appeals court. Thus, the jury should have been instructed to determine whether the employee met his burden of proving that "age was the determining factor" in his demotion.

Supreme Court. The High Court was presented with the question of whether a plaintiff must “present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.” However, prior to reaching that question, the Court reasoned that it was required to determine whether the burden of persuasion ever shifts to the party defending against a purported mixed-motives discrimination claim brought under the ADEA. The Court concluded that it does not.

Because Title VII is materially different from the ADEA with regard to the relevant burden of persuasion, precedent construing Title VII does not control construction of the ADEA, said the High Court. Subsequent to Price Waterhouse, Congress amended Title VII “by explicitly authorizing discrimination claims in which an improper consideration was ‘a motivating factor’ for an adverse employment decision,” wrote the Court. The High Court has never held that this burden-shifting framework is applicable to ADEA claims. “Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor,” wrote the Court. Further, Congress neglected to add such a provision when it amended Title VII, even though it amended the ADEA at the same time in several other ways. “We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA,” the Court said. “The Court’s interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace and Price Waterhouse.”

As to the question of whether the text of the ADEA authorizes a mixed-motives age bias claim, the High Court concluded that it does not. The ADEA provides that "[i]t shall be unlawful for an employer …to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, term, conditions, or privileges of employment, because of such individual’s age,” the Court emphasized, citing 29 USC §623(a)(1). The ordinary meaning of the requirement that an adverse action was taken ‘“because of’ age is that age was the ‘reason’ that the employer decided to act,” wrote the Court. Thus, to establish a disparate treatment under “the plain language” of the ADEA, “a plaintiff must prove that age was the ‘but for’ cause of the employer’s adverse decision,” instructed the Court. It then follows that under §623(a)(1), “the plaintiff retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse action,” the Court said. Thus, the burden required to establish employer liability is the same in an alleged mix-motives case as in any other ADEA disparate treatment claim.

The High Court rejected any notion that the interpretation of the ADEA is controlled by Price Waterhouse and its shifting of the burden of persuasion in Title VII mixed-motives claims. It is “far from clear” that the Court would use the same approach if considering the question today. “[It] has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply.” The problems associated with the application of Price Waterhouse “have eliminated any perceivable benefit to extending its framework to ADEA claims,” wrote the Court.

Concluding that the plaintiff in an ADEA disparate-treatment claim must prove that age is the "but-for" cause of the employment action challenged, and that the burden never shifts to the employer to show the same action would have been taken regardless of age, the High Court vacated the Eighth Circuit’s judgment and remanded the matter for further proceedings.

Dissenting opinions. Justice Stevens, with whom Justices Souter, Ginsburg, and Breyer joined in dissenting, would not have applied the “‘but-for’ causation standard” and would have answered only the question presented to the Court, finding that a plaintiff is not required to present direct evidence of age bias to obtain a mixed-motives jury instruction. “The Court’s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law,” wrote Justice Stevens. The "but-for" standard adopted by the Court was rejected in Price Waterhouse and by Congress in the Civil Rights Act of 1991, the Justice asserted. “Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking.”

In a separate dissent, Justice Breyer, joined by Justices Souter and Ginsburg agreed with Justice Stevens’ conclusion that mixed-motives instructions are appropriate in ADEA cases. Justice Breyer also disagreed with the majority’s conclusion that the words "because of" in the statutory text requires an ADEA plaintiff to show that age was the "but-for" cause of the challenged employment action. “The words ‘because of’ do not inherently require a showing of ‘but-for’ causation, and I see no reason to require such a showing,” wrote the Justice.

Reprinted with permission from Wolters Kluwer