Alaska Employment Law

Introduction

In a somewhat surprising opinion, the United States Supreme Court recently held that a mixed-motive instruction is never appropriate in an age discrimination case.  The case is Gross v. FBL Financial Services, Inc., ___ U.S. ___ (2009).  This summary briefly reviews the opinion and its significance.   

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 persuasion 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 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. Gross sought certiorari and the United States Supreme Court accepted review on December 5, 2008.  

Opinion

The Court vacated and remanded by a 5-4 vote, holding that there was a preliminary issue that neither the lower courts nor the parties considered; specifically, whether the burden of persuasion could ever shift in an age discrimination case.  The Court held it could not.  Writing for the majority, Justice Thomas noted 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.”  The ADEA prohibits adverse employment actions taken “because of” an employee’s age.  Accordingly, the majority reasoned that a plaintiff must show that age was the “but/for” cause of employment discrimination in order to prove a claim under the ADEA.  In addition, Congress never amended the ADEA to include mixed motive theories when it amended Title VII in 1991 to add such a provision.  The majority concluded that this meant that Congress did not want mixed motive theories to be prosecuted in ADEA cases.  

Justice Stevens and Justice Breyer authored separate dissents, with Justices Ginsburg and Souter joining both.  Justice Stevens criticized the majority for reaching an issue that the parties had not tabled.  Justice Stevens also observed that Price Waterhouse’s interpretation of the phrase “because of” rejected a “but/for” construction of this phrase.  Justice Stevens argued that this construction should be accorded precedential effect.  He criticized the majority’s “but/for” interpretation.  Justice Stevens finally noted that, in his opinion, the same standard that the Court established under Desert Palace for Title VII claims should govern ADEA claims;  that is, that direct or circumstantial evidence would suffice to prove a claim. Justice Breyer’s dissent closely tracked Justice Stevens’ and expanded upon its reasoning.

Significance

Many thought that this case would resolve the many complicated Price Waterhouse issues that have bedeviled the courts.  When the Eighth Circuit made its decision, it did so by reference to pre-existing law under Price Waterhouse, but this begged the question as to what that meant (exactly).  Most courts and commentators 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).  However, there was always room for doubt, and no one has ever satisfactorily interpreted the impossibly fractured Price Waterhouse opinion.  Instead of trying to untangle the intersected logical lines in Price Waterhouse, the Court cut the Gordian knot and held that mixed motive instructions were never appropriate in an age discrimination case. If Justice Stevens’ dissent is correct, it is likely that Congress will intervene to amend the ADEA to add the same mixed motive provision to the ADEA that Congress added to Title VII in 1991.