Mixed Motive Discrimination Post-Gross

March 9, 2010

In 2009, the Supreme Court issued a blow to mixed motive Age Discrimination in Employment Act (ADEA) cases in Gross v. FBL Financial Services, Inc. In Gross, the Court essentially held that age must be the reason for a challenged employment decision, as opposed to merely a reason for the decision. This departure from previous interpretations of mixed motive theories in the ADEA context prompted a significant amount of controversy. It also called into question the use of mixed motive theories in other contexts.

Legal Background

In relevant part, the ADEA provides “[i]t shall be unlawful for an employer. . .to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. ¶ 623(a)(1) (emphasis added). Notably (and unlike Title VII), the ADEA contains no specific provision addressing employment decisions partially based on age, as well as other factors.

The Supreme Court first provided guidance in mixed motive cases in the 1989 Price Waterhouse plurality decision. Under the Price Waterhouse framework, a plaintiff would first need to make a threshold showing through direct evidence that the impermissible consideration played “a substantial role” in the employment decision. If the plaintiff was successful, the burden would shift to the employer to show the same decision would have been made in the absence of the illegal motive.

Despite this ruling, Title VII was later amended in The Civil Rights Act of 1991 to include specific direction in mixed motive cases. In short, Title VII, as amended, allows a plaintiff to establish liability by simply showing the prohibited consideration was a motivating or substantial factor in the contested decision. While an employer can limit its liability by showing the same decision would have been made regardless of the impermissible consideration, liability will not be avoided.

The Gross Decision

Jack Gross, then 54 years old, complained of age discrimination against his employer based on a change in his title and responsibilities that placed him in the same job category as a woman in her early 40s. Although Gross’ compensation remained unchanged, he claimed the move amounted to a demotion. A jury agreed, awarding Gross $46,945 in lost wages.

The Eighth Circuit later reversed and remanded the verdict, prompting Gross to appeal to the Supreme Court. The specific issue on appeal, as acknowledged by the majority decision, was “whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.”

Justice Thomas, penning the majority opinion, never reached the specific issue. Instead, the majority opinion addressed the underlying issue of whether Title VII’s mixed motive framework is even applicable to the ADEA. The Court held it is not.

The foundation of the Court’s decision is rooted in the contrasting statutory construction of the ADEA relative to Title VII. While Title VII was specifically amended in 1991 to allow for liability when an impermissible factor is “a motivating factor” in a contested decision, no such amendment was made to the ADEA. Instead, the ADEA only provides for liability when the decision at issue was “because of” the plaintiff’s age. It is this distinction in the statutory schemes – “a motivating factor” v. “because of” – which is at the heart of the Gross decision.

According to the Gross majority, the plain meaning of the term “because of”, coupled with Congress’ decision to amend Title VII to include mixed motive language but not do the same with the ADEA, prohibits the use of the Title VII mixed motive framework in the ADEA context. Instead, to prove age discrimination, a plaintiff must show that “but for” his or her age, the contested decision would not have been made.

The Fallout

In dissent, Justice Stevens, along with Justices Ginsburg and Breyer, accused the majority of “unnecessary lawmaking” at odds with “our precedent and Congress’ intent.” The dissenting justices were not alone in their complaints.

Within weeks, members of the House and Senate likened the decision to the 2007 Lilly Ledbetter case and called for a similar legislative rebuke. The New York Times also chimed in, deeming the Gross decision a “dreadful ruling” and accusing the majority of “rewrit[ing] the rules for litigating age-discrimination cases in favor of employers.”

Meanwhile, a number of Circuits have begun to interpret and apply the Gross decision outside of the ADEA context, most notably the Serwatka v. Rockwell Automation, Inc. decision issued by the Seventh Circuit on January 15, 2010. In Serwatka, the Court applied the Gross rationale to Americans With Disabilities Act (ADA) mixed motive claims, requiring a plaintiff employee to show the complained of action would not have occurred “but for” the applicable disability to establish liability.

In light of recent history and the outcry in certain quarters, the debate over the Gross decision will continue. In the meantime, employers should consult counsel in applying the lessons of Gross to reorganizations and other employment decisions, as well as to any actual or threatened litigation.

For additional information, please contact the author or any other member of the McGuireWoods Labor & Employment and Employee Benefits teams.