In one of the last cases handed down before the end of the term, the United States Supreme Court significantly changed the landscape for cases brought under the Age Discrimination in Employment Act (ADEA). As a result, those employees who are 40 years old or older are probably sleeping a little less soundly than they were before the Court issued its opinion in Gross v. FBL Financial Services, Inc
At 54, Jack Gross, the claims administration director for FBL Financial Services, was reassigned to the position of claims project coordinator. Although his employer considered the reassignment a consequence of corporate restructuring, Mr. Gross considered it a demotion. Consequently, Mr. Gross brought a lawsuit against his employer under the ADEA, which makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age.”
At trial, Mr. Gross introduced evidence suggesting that his reassignment was based, at least in part, on his age, which made this a mixed-motive case because there was evidence that the reassignment was made for a legal reason (restructuring) and an illegal reason (age). The jury believed the defendant violated the ADEA and awarded Mr. Gross $46,945 in lost compensation. His employer appealed the verdict and the case ultimately made its way to the United States Supreme Court.
The parties asked the Court to determine whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motive jury instruction in a non-Title VII case. This question is significant because of the manner in which parties prove their respective cases under the burden-shifting structure.
Unlike a Hollywood courtroom drama, discrimination cases rarely involve a smoking gun. Inadequately deleted e-mails or surreptitiously recorded conversations do not typically save the day for an aggrieved employee. More often, discrimination must be proven through circumstance and inference.
To facilitate the process, the Supreme Court outlined a burden-shifting model wherein once the employee establishes the basic elements of his or her case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the allegedly illegal employment action. Thereafter, the employee has the burden of disproving the employer’s reason. This structure allows the jury to focus on the employer’s stated reason for taking an adverse employment action rather than considering all possible justifications under the sun. Once all of the evidence has been submitted, the jury will essentially be instructed to reach a verdict for whichever party they found more convincing.
In cases involving mixed-motives, like this one, the proof structure is a bit more complicated. Under established law, rather than making a preliminary showing, a plaintiff must submit evidence that discrimination was a motivating factor for the adverse employment action. Upon providing such evidence, the burden shifts to the employer to show that it would have taken the same action even without the illegal consideration.
Regardless of whether a case involves a mixed-motive, the burden-shifting proof structure, which typically culminates with the use of special jury instructions, is well established in all types of discrimination cases. And, the parties in this case merely sought clarification on when the special jury instructions should be issued to the jury in an ADEA mixed-motive case.
However, rather than answer the question asked, the 5-4 majority undertook the extraordinary, if not extrajudicial, task of answering its own question—does the burden ever
shift to the party defending an alleged mixed-motives discrimination claim brought under the ADEA. The Court held that it does not.
The Court supported its ruling by holding that Price Waterhouse v. Hopkins
, the 1989 case that originally established the burden-shifting proof structure in Title VII mixed-motive cases, does not apply to cases brought under the ADEA. This alone is monumental because, according to the dissent, every federal appellate court to consider the issue has held the exact opposite.
In addition to holding that the burden-shifting proof structure does not apply in ADEA cases, the Court held that a plaintiff alleging a violation of the ADEA must prove that age was the “but-for” cause of the adverse employment action. In other words, a plaintiff must prove that age was the reason, as opposed to a reason, for the adverse employment action. This is significant because the Court chose to interpret the same two words (“because of”) to mean two significantly different things depending solely on whether the phrase is found in Title VII or the ADEA. Thus, a plaintiff in an ADEA case will have a harder time proving his or her case than a Title VII plaintiff, despite the fact that the Supreme Court has long recognized that interpretations involving Title VII apply with equal force in the context of age discrimination.
So what are the likely practical consequences of Gross
? By removing the burden-shifting structure in mixed-motive cases, and by requiring “but-for” causation to establish an ADEA violation, an employee may have no choice but to locate that inadequately deleted e-mail or surreptitiously recorded conversation to prove his or her case. However, since the near impossibility of finding such evidence is what led the Supreme Court to develop the burden-shifting structure in the first place, the practical consequence of Gross
is that employees will likely find it considerably more difficult to prove disparate treatment in mixed-motive cases under the ADEA.
Whether or not the Court correctly interpreted the ADEA is debatable. What is not debatable, however, is the fact that the Court implemented a significant shift in the manner ADEA cases are litigated and in the scope of protection ultimately afforded by the ADEA. The last time the Court embarked upon such a course of action, Congress responded by legislatively overruling the Court. Who knows, by this time next year human resources practitioners across the country may be taking a course to learn about the Jack Gross Act.
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