June 2009

Supreme Court Narrows Reach of ADEA

BY NEAL D. MOLLEN, KENNETH W. GAGE AND DEREK BOTTCHER

In a surprisingly broad ruling beneficial to and may target others. For so long as the employers, the Supreme Court held last week decision remains good law, however, the that an age discrimination plaintiff bringing a decision is good news for employers defending disparate-treatment claim must prove that age age discrimination lawsuits. was the “but-for” cause of the challenged employment action, rather than simply one of Question In the Lower Courts: What several motivating factors. Gross v. FBL Financial Constitutes a “Mixed Motives” Case of Services, Inc., 557 U.S. ___ (2009). Adopting Age Discrimination? this substantially greater causation threshold for Gross filed suit against his employer, FBL cases under the Age Discrimination in Financial Services, Inc., alleging that he was Employment Act of 1967 (“ADEA”), the Court demoted because of his age in violation of the rejected the burden-shifting approach that is ADEA. At trial, the district court instructed the available to Title VII plaintiffs in “mixed motive” jury that Gross would be entitled to a verdict in cases. It does not suffice, the Court held, for an his favor if he could prove, by a preponderance age discrimination plaintiff simply to show that of the evidence, that his age was a “motivating his or her age was one consideration among factor” behind FBL’s decision to demote him, i.e., many in the challenged adverse employment if age “played a part” in FBL’s decision. action; the plaintiff must show that the adverse Conversely, the district court instructed the jury decision would not have been made had the that even if age played a role in the decision, it employer not considered the plaintiff’s age. should enter a verdict for FBL if the company Unlike in Title VII cases, according to the proved that it would have demoted Gross Supreme Court, the burden of persuasion never regardless of his age. The jury ruled in Gross’s shifts to the employer. favor, awarding him nearly $47,000. The Court’s five-member majority reached this FBL appealed to the Eighth Circuit, arguing that conclusion even though the burden of proof the district court should not have given the question was not expressly presented by the “motivating factor” instruction and improperly petition for certiorari and had not been fully shifted the burden of persuasion to FBL to show briefed by the parties or interested amici curiae. that it would have taken the same action in the A vehement dissent took the majority to task for absence of bias. The Eighth Circuit agreed, citing this unusual step, and one must assume that the Price Waterhouse v. Hopkins, 490 U.S. 228 distinctly pro-employer decision will be received (1989), a Title VII case in which the plurality unfavorably by the majority on Capitol Hill, concluded that in order to shift the burden of where the Democrats have already reversed one persuasion to the employer in a mixed motives recent pro-employer Supreme Court decision,

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case, the employee must present “direct The Court then turned to the ADEA itself. The evidence that an illegitimate criterion was a ADEA makes it unlawful for an employer to take substantial factor in the [employment] decision.” an adverse employment action “because of” a Id., at 276. Further, the Eighth Circuit held that person’s age. “[T]he ordinary meaning of the a plaintiff can shift the burden of persuasion to ADEA’s requirement that an employer took the defendant in a “mixed motives” case only by adverse action ‘because of’ age, is that age was producing “direct evidence” linking the the ‘reason’ that the employer decided to act.” challenged decision to alleged discriminatory The ADEA’s “plain meaning” requires that animus. Because no such “direct evidence” was plaintiffs prove that age was the “but-for” cause present in the case, the Eighth Circuit held, the of the adverse employment action, and that district court erred in shifting the burden to the absent age discrimination, the employer would employer. not have taken the same action. Because the statute is silent on the burden of proof, the Court The question posed to the Supreme Court, then, explained, there is no reason “to depart from the was whether a plaintiff must “present direct general rule” that plaintiffs bear the burden of evidence of discrimination in order to obtain a proving their claims. Further, the Court noted mixed-motive instruction in a non-Title VII that in enacting the Civil Rights Act of 1991, discrimination case.” Congress had amended Title VII — but not the ADEA — to embrace the mixed motive analysis Supreme Court: “Mixed Motives” expressly; importing the analysis into the ADEA Analysis does not Apply to ADEA Cases would amount to a legislative judgment beyond The courts below and the parties on certiorari the Court’s authority, the Court reasoned. “When had asked the wrong question, according to the Congress amends one statutory provision but Supreme Court. Before one could decide what not another, it is presumed to have acted evidence is sufficient to trigger a “mixed intentionally.” motives” jury instruction, one must first Proving Age Discrimination will be determine “whether the burden of persuasion Harder for Plaintiffs After Gross ever shifts to the party defending an alleged mixed-motive discrimination claim brought under Gross will come as a welcome surprise for the ADEA.” This antecedent question, the Court employers. Many observers had expected the held, was fairly subsumed in the question Court to incorporate existing Title VII standards presented on certiorari and therefore was ripe for mixed motive cases into the ADEA. Others for consideration. had expected the Court to set a somewhat higher bar for age cases. Few expected the Court According to the Court’s decision, a mixed to say that the mixed motive analysis never motive burden-shifting jury instruction is never applies under the ADEA. Going forward, ADEA proper in an ADEA case, and the plaintiff retains plaintiffs cannot prevail unless they show that the burden of proof at all times. The Court age was the “but-for” cause of the employer’s acknowledged that the controlling opinions in action. That standard is high enough to make a Price Waterhouse had concluded that under Title difference in the result in many age VII, a plaintiff could win a “mixed motives” case discrimination jury trials. by proving that a prohibited consideration was a “motivating,” but not the “but-for” cause, of an Of course, a “but-for” jury instruction will not employment decision. It questioned, however, always inoculate an employer from an adverse whether that decision “was doctrinally sound” result at trial, and employers should remain and it noted that even under Title VII, Price vigilant, reviewing managerial judgments and Waterhouse’s “burden-shifting framework [had documenting the nondiscriminatory reasons for proved] difficult to apply.” 2

adverse employment decisions. Doing so will make it harder for plaintiffs to demonstrate “but- for” causation, and will leave the employer better positioned to defend its actions.

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If you have any questions concerning these developing issues, please do not hesitate to contact any of the following Paul Hastings lawyers:

Chicago Washington, D.C. Kenneth W. Gage Neal D. Mollen 312-499-6046 202-551-1738 [email protected] [email protected]

18 Offices Worldwide Paul, Hastings, Janofsky & Walker LLP www.paulhastings.com

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