Alaska Employment Law

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Introduction

Does a plaintiff have to present direct evidence of discrimination in order to obtain a mixed-motive instruction in an age discrimination case? On Friday December 5, 2008, the United States Supreme Court granted certiorari to resolve this issue in Gross v. FBL Financial Services, Inc., 526 F.3d 356 (8th Cir. 2008), a case from the Eighth Circuit. This summary briefly reviews the case and relevant principles.

The Case

Jack Gross filed an age discrimination suit against his employer FBL Financial Services, Inc. after he was demoted. The district court gave a mixed motive instruction to the jury that had the effect of shifting the burden of proof to FBL Financial. Although there was no direct evidence of discrimination, the district court concluded that it could give a mixed motive instruction because there was ample circumstantial evidence that FBL Financial had engaged in intentional discrimination. The jury awarded Gross about $50,000 in damages. FBL Financial appealed, arguing that, in anything other than a Title VII case, a mixed motive instruction could only be given if there was direct evidence of discrimination.

The lower court’s opinion

The United States Court of Appeals for the Eighth Circuit agreed with FBL Financial and reversed. The court recognized that the United States Supreme Court held in Desert Palace Inc. v. Costa, 539 U.S. 90 (2003) that, in a Title VII case, direct evidence was not a necessary precondition to securing a mixed motive instruction. This is because the Civil Rights Act of 1991 amended Title VII (specifically 42 U.S.C. 2000e-2(m)) to provide that a mixed motive instruction was allowed when a plaintiff could show that an impermissible purpose was a motivating factor for an aggrieved decision. However, the court reasoned that the Civil Rights Act of 1991 only amended Title VII in this regard. Congress made no attempt to amend the Age Discrimination in Employment Act at the same time. Therefore, the court concluded that Justice O’Connor’s concurring opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) still controlled, and under Price Waterhouse direct evidence would be required before a mixed motive instruction could be issued. The court’s holding seems to conflict with a Fifth Circuit case, Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312-13 (5th Cir. 2004). Gross sought certiorari and the United States Supreme Court accepted review on December 5, 2008.

Review of Basic Principles

In a “basic” disparate treatment employment discrimination case, the McDonnell Douglas burden shifting test is used. The plaintiff must first establish the existence of a prima facie case. Once this is done, the burden of production (but not the burden of proof) shifts to the employer to come forward with sufficient evidence to show that its decision was based on a legitimate, non-discriminatory reason. If the employer makes this showing, the burden of production then shifts back to the plaintiff to show that the employer’s stated reason is pretextual. Although the burden of production shifts, the burden of proof always remains with the plaintiff.

In a mixed motive case, however, if the plaintiff can show that an impermissible discriminatory motive was a motivating factor for the decision or action being challenged, then the burden of proof shifts to the employer to show that it would have reached the same decision or taken the same action regardless of the existence of an impermissible discriminatory motive. At one time, in the context of Title VII cases, this required direct evidence of discrimination. This principle was based on Justice O’Connor’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 28 (1989)—a concurring opinion in this plurality case that most courts have interpreted as reflecting the Court’s holding in Price Waterhouse. Congress amended Title VII (and other acts) by the Civil Rights Act of 1991, and in the specific context of mixed motive cases, Congress instructed that in Title VII cases it was only necessary to show that an impermissible motive was a motivating factor for a challenged decision. However, Congress did not amend the ADEA at the same time.

Prediction

I am never reluctant to offer a prediction—not for purposes of being “right” or “wrong” but instead for purposes of analyzing existing trends—but this is one of these cases that will required more layered analysis beginning with the merits briefing, and the merits briefing will not be filed for a few weeks. Consequently, for the time being, I will defer any forecast. What can be said, however, is that this is one of those rare cases that will turn on both canons of statutory construction and principles of interpreting court precedent. Desert Palace was based on a plain meaning approach to Title VII—the statute meant what it said and (as amended by the Civil Rights Act of 1991) it does not require direct evidence to secure a mixed motive instruction. The statute’s clear terms dictated the result. It would be ironic if the plain meaning approach of Desert Palace could be extended to apply its result to another statute (the ADEA) that did not include a similar provision. Moreover, the fact that Congress did not also amend the ADEA at the same time that it amended Title VII reflects legislative intent that pre-existing law should govern the ADEA. This is a textualist approach that Justices Scalia and Thomas will likely support, and I believe Chief Justice Roberts, Justice Alito, and Justice Kennedy will join their analysis.

There is therefore a good chance that the outcome here may hinge on how one should interpret Price Waterhouse. What was “the pre-existing law” as represented by Price Waterhouse? Most courts and commentators have interpreted Justice O’Connor’s concurring opinion in Price Waterhouse as representing the Court’s holding under the basic principle that, where there is no clear majority, the rule of law governing a case is based on the narrowest grounds presented by concurring opinions. See Marks v. United States, 430 U.S. 188, 193 (1973). Most courts and commentators have concluded that Justice O’Connor’s concurring opinion in Price Waterhouse represented the narrowest grounds upon which the plurality opinion was based. However, there is room for doubt, and no one has ever satisfactorily interpreted the impossibly fractured Price Waterhouse opinion.

Significance?

For students of the Court, this case will reflect a fascinating bridge from pre-CRA 1991 reasoning to the present and an interesting test of competing interpretative principles. For employers, this may seem like arguing about so many angels on the head of a pin, but it actually has some fairly serious ramifications. It is fairly easy to distinguish between direct and indirect (or circumstantial) evidence of discrimination, and to explain that distinction to lay persons. Since Desert Palace, it is understood that direct evidence is no longer necessary to secure a mixed motive instruction in a Title VII case, but it has been the rare reported case that has issued a mixed motive instruction on less than direct evidence, or at least fairly overwhelming circumstantial evidence. If, however, the Court uses this case to refashion existing tests, it may be that the law may evolve to where a motivating factor can be shown based on the same circumstantial evidence used to establish a prima facie case under McDonnell Douglas, in which case we may find that this long-established test becomes largely superseded. If the Court affirms, it would not be surprising to see a Democratic Congress and Administration enact new legislation to extend Desert Palace’s reasoning to other federal remedial statutes.

Conclusion

I will try to update this summary with a prediction after the merits briefing is filed. This legal summary is for informational purposes and is not intended as legal advice. Employers with questions or seeking additional information should confer with counsel.