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Supreme Court Addresses Employee’s Burden in Mixed-Motives ADEA Cases

U.S. Supreme Court Shields Employers from the Burden of Persuasion
MVA Employment & Labor Team
Employment Law Alert
July 1, 2009

In Gross v. FBL Financial Srvcs., Inc., No. 08-441, the Supreme Court ruled favorably for employers in an age discrimination case.  The rules the Court announced make it more difficult for an employee to prove age discrimination, even in cases where age was a factor in the adverse employment decision.  In these co-called “mixed motive” cases, where an employer contends it would have reached the same decision even if age were not a consideration, the lower courts applied different standards for what an employee had to prove and varied on whether the discriminatory reason needed to be a “substantial” or “motivating” reason for an employee to prevail.

The Court held that an employee in a mixed-motive case must prove that age was the substantial factor in the adverse employment decision; in short, that “but for” age, the employer would not have made the decision.  The Court also ruled that unlike gender or race claims under Title VII, an age discrimination plaintiff could not shift the burden of persuasion to disprove age discrimination to an employer - instead, the employee retains the burden of persuasion at all times.

Lesson:  Gross does not change the fundamental law that an employer may not discriminate against an employee based upon age.  The case does, however, make proof more difficult than similar gender or race-based cases, for example, because the employee must prove that age was the “but for” cause of the challenged employment action.  Without a “mixed motive” form of jury instruction, employees will have a more difficult time at trial because they will need to show that age was the determining factor in the adverse decision.

SummaryIn Gross, the 54-year-old plaintiff was reassigned to another position within his department.  The plaintiff’s former duties were reassigned to another employee in her early forties.  Construing his reassignment as a demotion, the plaintiff sued for age discrimination under the Age Discrimination in Employment Act (“ADEA”) and introduced evidence suggesting that he was reassigned in part due to age.  At the end of the trial, the district court instructed the jury to return a verdict in plaintiff’s favor if he proved, by a preponderance of the evidence, that his “age was a motivating factor” in the defendant’s decision to demote him.  The district explained in its instructions that plaintiff’s age qualified as a “motivating factor” if his age played a part or a role in the defendant’s decision to demote plaintiff.  The jury was further instructed to return a verdict for the defendant if it proved by the preponderance of the evidence that it would have demoted the plaintiff regardless of his age.  The district court’s jury instructions demonstrated its reliance on the burden-shifting framework set forth in the Supreme Court’s decision Price Waterhouse v. Hopkins, a notable Title VII case.  In Price Waterhouse, the Supreme Court held that once a Title VII plaintiff shows that discrimination was a “motivating” or a “substantial” factor for the employer’s adverse employment action, the burden of persuasion shifts to the employer to demonstrate that it would have taken the same action in spite of the impermissible consideration.   

The Gross jury returned a verdict in favor of the plaintiff and the defendant challenged the jury instructions in its appeal to the U.S. Court of Appeals for the Eight Circuit.  The Eight Circuit held that the jury instructions were indeed improper because the district court should have imposed the burden of persuasion required for plaintiffs in non-mixed motives cases on the plaintiff, and as a result, the proper jury instruction would have directed the jury to decide whether the plaintiff “carried his burden of proving that age was the determining factor in FBL’s employment action.”

In its decision, the Supreme Court rejected the plaintiff’s attempt to graft the burden-shifting framework of Title VII cases onto mixed-motives cases under the ADEA because of the significant difference between the treatment of the burden of persuasion under Title VII and the ADEA.  Analyzing its prior Title VII and ADEA decisions, the legislative history of Title VII and the ADEA and the plain text of the ADEA, the Court held that a plaintiff seeking to establish an ADEA disparate-treatment claim must prove that age was the “but-for” cause of the adverse employment action by a preponderance of the evidence.  The Court also held that in ADEA cases, the burden of persuasion does not shift to the employer to prove that the adverse employment action would have occurred regardless of age, even if the plaintiff produces evidence that age was one motivating factor for the adverse action.

This decision, which eliminates any uncertainty regarding the employer’s burden in mixed-motives ADEA cases, is beneficial to employers because it establishes that the employee retains the burden of proving that age was the “but for” cause of the adverse employment action.