The impact of Gross v. FBL Financial Services, Inc. and the meaning of the but-for requirement.

Author:Noonan, Bran

With the interpretation of fair employment laws often mired in confusion, it comes as no surprise that the United States Supreme Court's decision in Gross v. FBL Fin. Servs., Inc. (1) raises more questions than it answers. In declining to apply the mixed-motive standard, commonly used in Title VII discrimination actions to claims under the Age Discrimination in Employment Act (ADEA), the Court held that an employee must prove that an adverse action would not have occurred "but-for" the employee's age. (2) The Court maintained that the statutory text, which prohibited discrimination "because of an employee's age, could not be literally interpreted any other way. (3) This holding marks a significant departure from the Court's prior pronouncement in the seminal Price Waterhouse v. Hopkins (4) case decided twenty years earlier and is likely a harbinger for impending disparity among the circuits. (5)

The "but-for" causal requirement, not often used in everyday employment litigation, raises questions as to what this requirement means and how it operates in an ADEA claim and, potentially, other employment law claims, since Gross did not provide explicit explanations. To prove discrimination, litigants, along with courts, are more accustomed to considering employment claims under the language of McDonnell Douglas Corp. v. Green, (6) which established the pretext standard, and Price Waterhouse, which established the mixed-motive standard. How then is the but-for requirement addressed in a discrimination claim under the ADEA? For summary judgment purposes, how is the requirement integrated into the McDonnell Douglas three-part test? Is the McDonnell Douglas test even the appropriate standard to handle but-for causality? Should another framework be devised for the requirement? What type of proof will actually establish but-for causation of discrimination at either summary judgment or trial? Equally critical is how the Court's method of statutory interpretation in Gross will affect other non-Title VII fair employment laws, as well as state employment laws, that are similar to and different from the ADEA.

All things considered, employment laws ideally should not be clouded with such uncertainty. In fact, they require a heightened level of clarity and accessibility, particularly where civil rights and livelihoods, as well as business reputations and finances, are at stake. Otherwise too many claims are left to chance. This article takes a first step at clearing the air. In the final analysis, the but-for requirement has the potential to alter the employment law landscape considerably. Whereas the mixed-motive standard only requires evidence that an illegitimate reason was a "motivating factor" in the adverse employment action, proving but-for causation will require more exacting proof at summary judgment and trial. With respect to summary judgment, while parties may likely address the but-for requirement under the McDonnell Douglas framework, they may find the standard inadequate. In fact, the Gross Court explicitly questioned the sufficiency of McDonnell Douglas in ADEA claims. (7) If Congress does not amend or overturn Gross, federal and state courts may be required to map out additional evidentiary frameworks to supplant or complement the McDonnell Douglas standard, a result that might further complicate employment litigation. Finally, it is not yet entirely clear when federal and state employment laws with causal statutory text identical to or different from the ADEA will have the mixed-motive standard grafted onto them.


    In Gross, a fifty-four year old employee commenced a discrimination action against his employer, alleging that he was demoted from his position as Claims Administration Director to Project Coordinator on account of his age in violation of the ADEA. (8) At trial, the district court instructed the jury to enter a verdict for the plaintiff if he established age was a "motivating factor" in his demotion--the plaintiffs burden under the mixed-motive standard. (9) On appeal, the Eighth Circuit held that the jury had been incorrectly instructed to apply the mixed-motive standard because the plaintiff was only entitled to the instruction after presenting direct evidence that age was a factor in the decision, which Gross had failed to do. (10) While the Supreme Court originally certified the issue as to whether direct evidence was mandatory for a mixed-motive instruction under the ADEA, the Court unexpectedly addressed the unasked doctrinal question of whether a mixed-motive analysis was ever appropriate in an ADEA claim. (11)

    In requiring a plaintiff to prove, by either direct or circumstantial evidence, that age was the but-for cause of the challenged employment action, the Supreme Court looked to the strict meaning of the text in the ADEA--typically considered a textualist method of interpretation. (12) Whereas Title VII--which prohibits employment discrimination based on protected categories, such as race, gender, and religion--explicitly contains the "motivating factor" language (since 1991), the language of the ADEA makes it unlawful for an employer to take adverse action against an employee "because of such individual's age." (13) Lifting the definition of "because of from the dictionary, the Court determined that the statutory language means "that age was the 'reason' that the employer decided [not] to act"--indicative of but-for causality as opposed to a mixed-motive inquiry which only identifies a "motivating factor" in the decision, not the ultimate reason. (14) Absent mixed-motive language, courts could not, therefore, read the standard into the ADEA or, presumably, any similarly constructed employment statute.

    The Court arrived at this conclusion despite its previous interpretation in Price Waterhouse of the same "because of language in the pre-1991 amended Title VII that had yet to include the mixed-motive language. (15) Back then, the Court concluded that such causal text authorized a mixed-motive inquiry. The Gross Court, however, justified the change of direction on the basis that Congress amended Title VII in 1991 after Price Waterhouse to include the "motivating factor" language, while declining to contemporaneously add it to the ADEA. (16)

    Nevertheless, despite the Court's turnaround, Gross failed to define the meaning and mechanics of the but-for requirement in proving an ADEA claim. As a result, in order to understand "but-for" causality, the first place to begin is, interestingly enough, with Gross's predecessor, Price Waterhouse, which Gross went just short of overruling. (17)


    Decided in 1989, Price Waterhouse v. Hopkins involved a fractured opinion that resulted in a plurality. The core of the disagreement centered on the correct standard of causation and the allocation of the ultimate burden of persuasion in a Title VII action. The evidence revealed that the employer's decision to reject the plaintiff, Ann Hopkins, for partnership at an accounting firm was motivated by both legitimate concerns about her interpersonal skills and "an impermissibly cabined view of the proper behavior of women." (18) What, then, precisely caused the employer to bypass Ms. Hopkins for the appointment? The plurality did not construe the statute as requiring the plaintiff to show such a definite determination.

    In arriving at the mixed-motive standard, the plurality aimed to establish a standard of causation based on "the kind of conduct that violates the statute." (19) As with the ADEA, Title VII (prior to being amended in 1991) prohibited discrimination "because of the employee's protected category. The plurality rejected the notion that the phrase "because of" mandated a plaintiff to establish "but-for" causation. Rather, the statute was designed "to forbid employers to take [a protected category] into account in making employment decisions." (20) Such was an interpretation that would only require a plaintiff to establish that an employer "relied upon" an illegitimate reason rather than having "to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision." (21) In other words, a plaintiff did not have to isolate and quantify the forms of legitimate and illegitimate conduct. For instance, if an employee who received numerous warnings for tardiness and performance was ultimately terminated by his employer who acknowledged an animus towards the employee's race, the employee would likely not have to prove which factor was determinative. It would be enough that race played a role in the employer's thought process.

    Accordingly, the plurality devised a standard that required an employee first to establish that a protected category was a "motivating factor" in the employment decision. Once an employee met this burden, the plurality then allowed an employer to escape liability by proving it would have made the same decision regardless of the illegitimate reason, a burden which the plurality labeled as an "affirmative defense." (22) This shifting evidentiary burden became known as the mixed-motive standard, which was contrary to the traditional McDonnell Douglas standard created over a decade earlier. The McDonnell Douglas tripartite standard first required an employee to establish his or her prima facie case of discrimination--not an onerous burden--which created a presumption of discrimination. The burden then shifted to the employer to articulate a legitimate, non-discriminatory reason for the adverse action, thus eliminating the presumption. The employee then carried the final burden of establishing that the employer's stated reason for the action was pretextual. (23)

    In his Price Waterhouse dissent, Justice Anthony Kennedy sharply criticized the plurality for shifting the final burden of proof onto the defendant, instead of leaving it with the plaintiff. (24) The mixed- motive...

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