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June 23, 2009 |
Schiff Hardin Labor and Employment Alert By Christina A. Andronache and Catherine H. Thompson In a 5 - 4 decision delivered by Justice Clarence Thomas, the U.S. Supreme Court in Gross v. FBL Financial Services, Inc. held that an employee bringing a claim under the Age Discrimination in Employment Act ("ADEA") bears the burden of persuasion that age was the "but for" cause (i.e. sole cause) of the employer's adverse employment decision even if the employee produces some evidence that age may have been a contributing factor in the decision. No. 08-441 (S. Ct. June 18, 2009). In doing so, the Court found that the ADEA is materially different from Title VII with respect to their relevant burdens of proof. The Court refused to apply the "mixed-motive" standard articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1998), a Title VII gender discrimination case, that the burden of persuasion shifts to the employer when the employee introduces evidence of an impermissible consideration (e.g., gender, race, etc.). In this case, the petitioner, Jack Gross, a man in his fifties, brought a claim against his employer, FBL Financial Group, Inc. ("FBL"), alleging that he was demoted on account of his age in violation of the ADEA. At trial, the judge instructed the jury under the "mixed-motive" standard, directing the jury to find for the employee if he proved, by a preponderance of the evidence, that age was a motivating factor in FBL's decision to demote him. The jury found in his favor, but on appeal, the Eighth Circuit reversed, holding that instruction was improper under Price Waterhouse because the burden only shifts to the employer when the employee presents direct evidence of an improper motive. The Supreme Court vacated the Eighth Circuit's decision, holding that the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age even when the employee has produced some evidence that age was one motivating factor. In other words, the ADEA does not authorize a mixed-motive discrimination claim. Rather, the employee must prove that his age made a difference in what happened, not just that it was one of several motivating factors. The Court distinguished its previous decision in Price Waterhouse, reasoning that "[u]nlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor." Instead, the employee must establish that age was the "but for" cause of the employer's decision. The Court relied in great part on the legislative history of Title VII, pointing out that when Congress amended Title VII to explicitly authorize discrimination claims in mixed-motive scenarios, it did not similarly amend the ADEA, even though it made other contemporaneous changes to this law. According to the Court, "[w]hen Congress amends one statutory provision but not another, it is presumed to have acted intentionally." The decision drew sharp criticism from Justice Paul Stevens, who, in his dissent, accused the majority of engaging "in an unabashed display of judicial lawmaking" by disregarding both Congress' intent and the standard established in Price Waterhouse. It is possible that this ruling will prompt Congress to respond with legislation to amend the language of the ADEA so that the burden of proof is consistent with that of Title VII. Because of this possibility, employers need to take extra precautions to make sure they document the legitimate, non-discriminatory reasons for its employment decisions, especially in the current economy, where employers are making layoff decisions on a daily basis. If you have any questions about the contents of this article, please contact any attorney in Schiff Hardin's Labor and Employment group. RECENT LABOR AND EMPLOYMENT PUBLICATIONS
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