Supreme Court Makes it Harder to Prove Age Discrimination
Tuesday July 7, 2009
Contributed by: Ronn P. Garcia
On June 18, 2009, the United States Supreme Court made it more difficult for workers to prove their claims of workplace age discrimination. Gross v. FBL Financial Services, Inc., - U.S. -, 129 S.Ct. 2343 (2009). In Gross, an employee brought an action against his employer, alleging that he was demoted because of his age. Id. at 2344. The question before the Court was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq. Gross, 129 S.Ct. at 2344. In a 5-4 decision, the Court rejected the applicability of the mixed motive burden-shifting instructions to ADEA cases and held that a mixed-motives jury instruction is never proper in an ADEA case.
In Price Waterhouse v. Hopkins, the Supreme Court addressed the allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations, i.e., a “mixed-motives” case. Price Waterhouse, 490 U.S. 228, 232, 244-247, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion). Title VII governs discrimination based on individual’s race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2. In Price Waterhouse, six justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a “motivating” or a “substantial” factor in the employer’s action, the burden of persuasion should shift to the employer to show that the employer would have taken the same action regardless of that impermissible consideration. See Price Waterhouse, 490 U.S. at 258, 109 S.Ct. 1775, 104 L.Ed.2d 268.
In contrast to the Title VII analysis, in a case alleging disparate treatment in violation of the ADEA, the worker must prove that age was the decisive factor in the action taken by the employer, even though the evidence shows that age played some role in the employer’s decision. The Court concluded that the so-called burden-shifting method of determining liability in Title VII cases cannot be applied to ADEA cases because of the different language in the two laws. Gross, 129 S.Ct. at 2350. The Court reasoned that ADEA prohibits discrimination “because of” age and does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. See 29 U.S.C. § 621. However, as pointed out in Justice Stevens’ dissenting opinion, the ADEA also “makes it unlawful for an employer to discriminate against any employee ‘because of’ that individual’s age.” Gross, 129 S.Ct. at 2352-53 (original emphasis). See also 29 U. S. C. § 621. Justice Stevens added, “The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee.” Gross, 129 S.Ct. at 2353. (original emphasis).
In the end, the Court held that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.” Id. at 2352.
As pointed out by the dissent, it is very important to note that the relevant language in the ADEA and Title VII is identical. Additionally, although “the Court’s approach to interpreting the ADEA in light of Title VII has not been uniform,” Gross, 129 S.Ct. at 2349, the Court has long recognized that the interpretations of Title VII’s language apply “with equal force in the context of age discrimination, for the substantive provisions of the ADEA ‘were derived in haec verba from Title VII.’” Gross, 129 S.Ct. at 2354. (Stevens, J., dissenting) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)).
It will be interesting to see how Gross will be argued as new litigation is brought before the courts. For now, however, from a practical standpoint, this decision makes it far more challenging for employees to successfully prove ADEA claims. Now, in these claims, the employer will not have to prove that non-discriminatory reasons were the true basis for the adverse employment action.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
