The New Definition of "because Of": the Supreme Court Distinguishes Identical Causation Language in Title Vii and the Adea in Gross v. Fbl Financial Services, Inc., 129 S. Ct. 2343 (2009)

• Publication year: 2021

90 Nebraska L. Rev. 1017. The New Definition of "Because of": The Supreme Court Distinguishes Identical Causation Language in Title VII and the ADEA in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009)

The New Definition of "Because of": The Supreme Court Distinguishes Identical Causation Language in Title VII and the ADEA in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009)

Note(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 1018

II. Background ........................................... 1019
A. History of Motivating Factor and the Direct Evidence Requirement ............................. 1019
1. Title VII and the Age Discrimination in Employment Act ............................... 1019
2. McDonnell Douglas v. Green, 411 U.S. 792 (1973)......................................... 1020
3. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ......................................... 1022
4. The Civil Rights Act of 1991 ................... 1025
5. Desert Palace, Inc., v. Costa, 539 U.S. 90 (2003)......................................... 1026
6. Smith v. City of Jackson, 544 U.S. 228 (2005). . 1027
B. Gross v. FBL Financial Services, Inc. Facts and Holding ........................................... 1027
1. Facts and Procedural History .................. 1027
2. Majority Opinion .............................. 1028
3. Dissenting Opinion ............................ 1030
C. Lower Court Treatment Since Gross: The Confusion ......................................... 1030

III. Analysis .............................................. 1031

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A. Interpreting the Civil Rights Act of 1991 ........... 1032
B. Price Waterhouse as Precedent: Determining Causation and the Burden of Persuasion by Defining "Because Of" ............................. 1034
C. Burden Shifting After Gross ....................... 1035
D. Concurrent Motivations ........................... 1037
E. The Direct Evidence Requirement ................. 1038

IV. Conclusion ............................................ 1039

I. INTRODUCTION

Both Title VII of the Civil Rights Act (CRA) of 1964(fn1) and the Age Discrimination in Employment Act of 1967 (ADEA)(fn2) prohibit employers from making an adverse employment decision "because of" certain improper criteria.(fn3) The Supreme Court's opinion in Gross v. FBL Financial Services, Inc.(fn4) explored the plain meaning of "because of" to determine the threshold for causation required under the ADEA. Curiously, the Gross Court came to a different conclusion than the Justices who engaged in the same exploration of "because of" under Title VII in Price Waterhouse v. Hopkins.(fn5) The Court's underdeveloped plain meaning argument and failure to elevate its choice of statutory interpretation over the obvious and compelling alternatives call into question whether these portions of the opinion were determinative of the holding. The Gross Court's skepticism of the motivating factor standard and mixed-motive burden-shifting scheme that developed under the Title VII analysis, though not as thoroughly explored in the Court's opinion, provides a more intelligible rationale for the outcome in Gross.

In maintaining that this was an exercise in scrutinizing the language of the statute instead of explaining the persuasive force of the practical considerations, the Court created confusion over whether the Price Waterhouse analysis might still apply to other statutes with "because of" or other similar causation language. Some of the confusion in the Court's opinion also stems from the conflation of causation standards

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with burden schemes. While it makes sense that Gross addressed both causation and burdens, given that Price Waterhouse created the burden-shifting scheme in part to balance the plaintiff's lower, motivating-factor causation burden, this Note will attempt to separate the ideas in an effort to show how the respective opinions grappled with the proper allocation of the burden of persuasion in discrimination cases, the difficult problem of dissecting the motivations for an employment decision, and the heightened evidentiary requirement, if any, under a burden-shifting scheme.

After detailing the complex history of mixed-motive burden-shifting in discrimination cases that led to this particular brand of ambiguity over congressional intent and sampling the variety produced when lower courts have applied Gross to other statutes, this Note will make the case that the majority's decision was driven by an understanding of the practical difficulties that mixed-motive burden-shifting has created, a skepticism about how well the doctrine accomplishes justice, and a legal conservatism that favors traditional causation and burden schemes. Further, the Note will argue that Gross is not, as the Court's reasoning would suggest, about the level of causation burden that must be satisfied but rather about who bears that burden. Though Congress has codified the mixed-motive burden-shifting scheme in the language of Title VII through post-Price Waterhouse amendments,(fn6) Gross reverts to the allocation that speaks to simplicity and judicial restraint by applying the traditional default causation standard: that the plaintiff bears the burden of persuasion by a preponderance of the evidence.(fn7) Finally, the Note will make the case that while Gross appears to cast doubt on all Title VII burden-shifting precedents, the Court's attention to practical applications and inclination toward traditional burden structures might be compatible with the shifting burden of production under McDonnell Douglas Corp. v. Green,(fn8) which provides a sufficient guard against the inequities of asymmetric information, maintains the least restrictive burden on employers, provides for the most intuitive jury instructions, and maintains the traditional burden of persuasion.

II. BACKGROUND

A. History of Motivating Factor and the Direct Evidence Requirement

1. Title VII and the Age Discrimination in Employment Act

The law of discrimination and retaliatory discharge is highly intertwined and highly complex. During oral arguments in Gross, Carter

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G. Phillips admitted, "[I]n 25 years of advocacy before this Court I have not seen one area of the law that seems to me as difficult to sort out as this particular one is."(fn9) Sometimes it is difficult to parse distinctions made between discharge claims for age discrimination, gender discrimination, discrimination based on disability, or exercise of First Amendment rights, but it is important to understand that these claims are based on related, but different, sources of law.

Title VII of the CRA of 1964 made it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."(fn10) The ADEA is a separate statute, passed in 1967, that makes it unlawful "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."(fn11) The similarity in language has led the courts to consistently apply Title VII precedents to the ADEA.(fn12) The strength of this practice is evidenced by the fact that courts often feel it necessary to justify any divergence from it. For example, when the Court decided the ADEA was intended to prohibit discrimination only against older and not younger workers, the Court distinguished the Title VII precedent that found protection for both male and female workers.(fn13) Notably, Justice Thomas dissented in that opinion based on the Title VII precedent.(fn14)

2. McDonnell Douglas v. Green

Percy Green, a black man, lost his job with McDonnell Douglas during a period of cost-cutting by company management.(fn15) After his discharge, he was involved in at least one protest of the company's hiring policies in which protestors blocked traffic in and out of a McDonnell Douglas plant during the morning shift change.(fn16) When the company started to add positions, it refused to rehire Green because of

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his involvement in the protest.(fn17) Green filed a complaint under Title VII claiming the decision not to rehire him was because of his race.(fn18)

In McDonnell Douglas, the Court established a pre-trial scheme in which the burden of production shifts in order to frame and clarify the issues for trial. First, the employee must show:

(i) [T]hat 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.(fn19)

Second, the defendant must articulate some legitimate reason for the employment action.(fn20) Finally, the employee must be given the opportunity to prove that the employer's professed reason is mere pretext and that the actual reason was discrimination.(fn21)

This pre-trial burden-shift achieves three primary advantages without shifting the burden of persuasion from the plaintiff at trial. First, simple cases involving...