Gross v. Fbl Financial Services, Inc.: a Simple Interpretation of Text and Precedent Results in Simplified Claims Under the Adea - Robert Fuller

• Publication year: 2010

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Gross v. FBL Financial Services, Inc.: A Simple Interpretation of Text and Precedent Results in Simplified Claims Under the ADEA

In Gross v. FBL Financial Services, Inc.,¹ the United States Supreme Court was asked to clarify whether the direct evidence requirement articulated in Price Waterhouse v. Hopkins² —later superseded by the Civil Rights Act of 1991³ —applied to mixed-motive claims brought under the Age Discrimination in Employment Act of 1967 (ADEA).⁴ In an unexpected twist, the Court held that a plaintiff must prove by a preponderance of any evidence, direct or indirect, that age was the "but-for" or "determinative" cause of the adverse employment action.⁵ Accordingly, the employer bears no burden of persuasion on any issue in defending claims under the ADEA.⁶ If the plaintiff carries that heavy burden, there is liability; the defendant no longer has (or needs) the "same decision" defense that previously avoided ADEA liability once the plaintiff had shown that age played some part in the challenged employment decision.⁷ Because the Court's decision in Gross requires ADEA plaintiffs to show that age played a decisive causative role, the ADEA defendant has no defense to carry and hence no burden of persuasion.⁸ Although it simplifies the analysis for ADEA mixed-motive claims, the decision, should it survive nascent congressional stirrings of opposition, will make it harder for plaintiffs to survive summary judgment motions or motions for judgment as a matter of law.⁹ Courts will now also be forced to consider whether Gross has an impact on the trial of claims under 42 U.S.C. Sec. 1981¹⁰ and 42 U.S.C. Sec. 1983.¹¹

I. Factual Background

In 1971 Jack Gross began working for FBL Financial Group, Inc. In 2003, when he was fifty-four years old, Gross was reassigned to a new position. Many of his former job responsibilities were assigned to a newly created position filled by Lisa Kneeskern, a woman in her early forties who had previously worked under Gross. Although Gross continued to receive the same compensation, he viewed the reassignment as a demotion.¹²

Gross filed suit against FBL in the United States District Court for the Southern District of Iowa, arguing that his reassignment constituted an adverse employment action in violation of the ADEA.¹³ At the conclusion of the trial, the court instructed the jury to find in favor of Gross if he proved by a preponderance of the evidence that (1) he was demoted, and (2) age was a motivating factor in FBL's decision. According to the court, age was a motivating factor if it played a part in the demotion. Finally, the jury instructions dictated that the jury must find in favor of FBL if the defense proved that it would have made the same decision regardless of Gross's age. The jury returned a verdict for Gross.¹⁴

"The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins."¹⁵ According to the court of appeals, Gross failed to provide direct evidence of discrimination; therefore, he was ineligible for a mixed-motive jury instruction that would place the burden on FBL to prove that it would have reassigned Gross for lawful reasons alone.¹⁶

The question presented to the United States Supreme Court on certiorari 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.'"¹⁷ Before reaching that question, however, the Court held in a 5-4 decision that the burden of persuasion never shifts to the party defending an alleged mixed-motive discrimination claim under the ADEA.¹⁸

II. Legal Background

Congress passed the ADEA¹⁹ to prohibit employers from arbitrarily discriminating against employees based on age.²⁰ To accomplish this goal, the ADEA provides that it is "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."²¹ The ADEA prohibits age discrimination in employment in a manner similar to how Title VII of the Civil Rights Act of 1964²² prohibits discrimination based upon race, color, religion, sex, or national origin.²³ Although not exactly the same, the language and structure of the ADEA, most notably its "because of" language, often mirrors that of Title VII.²⁴ Consequently, when addressing claims of age discrimination, courts have frequently used the same analysis that is used to decide Title VII claims of discrimination based upon race, color, religion, sex, or national origin.²⁵

The most common framework used for Title VII claims was set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green.²⁶ In McDonnell the Court held that a Title VII plaintiff can establish a prima facie case of racial discrimination through indirect, circumstantial evidence by showing:

(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.²⁷

If the plaintiff succeeds in proving a prima facie case, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection."²⁸ Should the employer carry this burden, the plaintiff has an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not the true reasons, but rather a mere pretext for discriminatory rea-sons.²⁹ Ultimately, the plaintiff must prove that the employer made the decision because of the plaintiff's membership in a group.³⁰

Eight years after the decision in McDonnell, the Court in Texas Department of Community Affairs v. Burdine³¹ clarified the framework by emphasizing that the defendant's burden is simply one of production, not proof.³² In Burdine the Court stated that the plaintiff always retains "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."³³ The Court also reiterated that the McDonnell framework was flexible and, because of the wide variety of factual scenarios that could present themselves under Title VII, may not apply in every situation.³⁴ Although the McDonnell framework was created in a Title VII case, its simplicity has led courts to apply its process of evidentiary analysis to age discrimination claims.³⁵ Since the passage of the ADEA every circuit has employed some variant of the framework to analyze ADEA claims that are based primarily on circumstantial evidence.³⁶

Because direct evidence of discrimination is usually "hard to come by" in employment discrimination cases,³⁷ the McDonnell framework serves the important function of using circumstantial evidence to "eliminate[] the most common nondiscriminatory reasons for the [employee's] rejection."³⁸ once these nondiscriminatory reasons are eliminated, an inference of discrimination is raised because the court presumes that "'these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.'"³⁹ However, the situation becomes complicated when the fact finder determines that the challenged employment decision was based on impermissible, discriminatory factors as well as permissible, nondiscriminatory factors.⁴⁰ The Court first addressed such a situation in Price Waterhouse v. Hopkins.⁴¹ In a plurality opinion written by Justice Brennan, the Court held that once a Title VII plaintiff proves that an impermissible factor played a motivating part in the defendant's employment decision, the defendant may avoid liability by proving by a preponderance of the evidence that it would have made the same decision in the absence of the impermissible factor.⁴² Unlike the concurring and dissenting opinions, Justice Brennan reasoned that the language of Title VII, which prohibits discrimination "because of" the employee's race, color, religion, sex, or national origin,⁴³ did not require a plaintiffto show that an impermissible factor was the "but-for" cause of an employment decision.⁴⁴ Furthermore, Justice Brennan did not specify the quantum of evidence required to shift the burden of proof in mixed-motive cases.⁴⁵

Justice O'Connor wrote a concurring opinion that some courts later followed as the authoritative view of the Court because it was the narrowest opinion necessary to form a majority.⁴⁶ Justice O'Connor disagreed with the plurality in two notable areas. First, Justice O'Connor asserted that the legislative history of Title VII and the plain meaning of the words "because of" indicated that an employer only violated Title VII when an impermissible factor was the "but-for" cause of an adverse employment action.⁴⁷ Although Justice O'Connor did not explain how an employer could prove that it would have made the "same decision" for lawful reasons alone if the plaintiffhad already proved that an impermissible factor was the "but-for" cause of the challenged decision, Justice O'Connor contended that the employer should bear that burden (on the same-decision defense) only when the plaintiff proves that "an illegitimate criterion was a substantial factor in the deci-sion."⁴⁸ Second, Justice O'Connor took issue with the plurality's broad statements regarding the relative roles played by lawful and unlawful motives in determining what type of prima facie evidence suffices to impose that same-decision burden of persuasion on the employer.⁴⁹ Justic O'Connor stressed that the employer would bear that burden on the issue of causation only when "a disparate treatment plaintiff...