Caseflicks

Supreme Court of the United States • 2009

Gross v. FBL Financial Services, Inc.

557 U.S. 167 | 129 S. Ct. 2343 | 174 L. Ed. 2d 119 | 2009 U.S. LEXIS 4535 | 21 Fla. L. Weekly Fed. S 958 | 77 U.S.L.W. 4531

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Takeaway

In short, this case makes but-for causation the governing rule for ADEA disparate-treatment claims: age must be the decisive cause of the adverse action, and the employer never bears a mixed-motives same-decision burden.

Background

Jack Gross had worked for FBL Financial Group since 1971 and was its claims administration director by 2001. In 2003, when Gross was 54, FBL reassigned him to claims project coordinator and transferred many of his former duties to a newly created claims administration manager position filled by Lisa Kneeskern, a former subordinate in her early forties. Although Gross and Kneeskern received equal compensation, Gross viewed the change as a demotion.

Gross sued under the ADEA, which prohibits adverse employment actions taken “because of” an individual’s age. At trial, he offered evidence that age played a part in the reassignment; FBL answered that the change resulted from a restructuring and that the new job better matched Gross's skills. The District Court instructed the jury to find for Gross if age was a motivating factor, but to find for FBL if it proved it would have made the same decision regardless of age. The jury found for Gross and awarded lost compensation.

The Eighth Circuit reversed. Treating Justice O'Connor's concurrence in Price Waterhouse as controlling, it held that an ADEA plaintiff could receive a mixed-motives instruction only upon presenting direct evidence that age actually motivated the decision. Because Gross conceded that his evidence was not direct, the court ordered a new trial under a determining-factor standard. The Supreme Court granted review, but first considered the threshold question whether mixed-motives burden shifting is available at all under the ADEA.

Issues

Issue #1

Whether an ADEA plaintiff may establish liability under a mixed-motives framework by showing that age was one motivating factor, after which the employer bears the burden to prove it would have made the same decision anyway.

Holding

No. An ADEA disparate-treatment plaintiff must prove that age was the but-for cause of the adverse employment action; the burden of persuasion never shifts to the employer on a same-decision defense.

Reasoning

The Court distinguished Title VII precedent, especially Price Waterhouse and Desert Palace. Congress amended Title VII in 1991 to expressly make an employment practice unlawful when race, color, religion, sex, or national origin was “a motivating factor,” even if other factors also motivated the decision, and to prescribe limited remedies where the employer proves it would have acted the same way. The ADEA contains no comparable language.

Congress amended Title VII's mixed-motives provisions while contemporaneously amending the ADEA in other respects, but it did not add motivating-factor liability to the ADEA. That deliberate difference mattered: the Court would not import a rule from one statute into another when Congress expressly changed one statutory scheme and left the other without the same change.

The ADEA makes it unlawful to take an adverse action “because of” an individual's age. Reading those words according to their ordinary meaning—“by reason of” or “on account of”—the Court concluded that age must be the reason for the challenged decision. Its prior ADEA decision in Hazen Paper likewise described the protected trait as needing to have a determinative influence on the outcome.

Thus, age must be a but-for cause of the action, not merely one factor among several. The plaintiff bears the ordinary burden of persuasion to establish that element by a preponderance of the evidence, and nothing in the ADEA's text creates an exception shifting that burden to the employer in alleged mixed-motives cases.

The Court also noted that Price Waterhouse's burden-shifting framework had proved difficult for courts and juries to administer. Even if that framework were sound under Title VII before Congress amended that statute, those practical problems provided no reason to extend it to a distinct statute that lacks Title VII's motivating-factor language.

Issue #2

Whether an ADEA plaintiff must present direct evidence of discrimination to obtain a mixed-motives jury instruction.

Holding

The question is unnecessary to decide, because a mixed-motives burden-shifting instruction is never proper in an ADEA disparate-treatment case. A plaintiff may nevertheless use either direct or circumstantial evidence to prove but-for causation.

Reasoning

Once the Court held that the ADEA does not authorize shifting the burden of persuasion to the employer when age is a motivating factor, the dispute over whether direct evidence is required to trigger that shift disappeared. There is no ADEA mixed-motives instruction of the kind sought by Gross.

The Court emphasized, however, that it was not imposing a heightened evidentiary requirement. An ADEA plaintiff may prove, by a preponderance of direct or circumstantial evidence, that age was the but-for cause of the employer's adverse action.

Dissents

Justice Stevens

Reasoning

Justice Stevens argued that the Court decided an unnecessarily broad question that was not presented in the certiorari petition. The granted question was whether direct evidence was necessary for a mixed-motives instruction; the Court instead held that no mixed-motives instruction is ever available. In his view, the Court should not have reached that issue when it was raised only in FBL's merits brief and had not received full consideration from the parties, amici, or the United States.

On the merits, Justice Stevens read “because of” age to prohibit decisions motivated in whole or in part by age. Price Waterhouse had construed the identical language in Title VII to mean that an unlawful consideration need only be a motivating factor, not the sole or but-for cause. Because the ADEA's substantive language was derived from Title VII, he saw no basis to give the same phrase a different meaning.

Justice Stevens rejected the majority's reliance on the 1991 Civil Rights Act. Congress altered Title VII by preserving motivating-factor liability while replacing Price Waterhouse's complete same-decision defense with a limitation on remedies. But Congress's failure to amend the ADEA did not displace the preexisting Price Waterhouse interpretation; it left that interpretation applicable to the ADEA. He regarded Smith v. City of Jackson as supporting this approach because it applied Title VII's pre-1991 interpretation of parallel language to the ADEA after Congress amended Title VII but not the ADEA.

Justice Stevens would also have answered the question actually presented: direct evidence should not be required. Desert Palace held that Title VII's mixed-motives provision imposed no direct-evidence requirement, and the ADEA likewise contains no heightened proof rule. Circumstantial evidence has long been accepted in discrimination cases, including ADEA cases.

Justice Breyer

Reasoning

Justice Breyer joined Justice Stevens and separately challenged the majority's conclusion that “because of” inherently requires but-for causation. In cases involving human motives, a decision may be made for several reasons, and a finding that age played a role naturally supports saying that the action was taken because of age as well as other considerations.

A but-for inquiry into a decisionmaker's mixed motives asks what the employer hypothetically would have done had the age-related motive been absent. That counterfactual question is often difficult, particularly because the employer generally knows more than the employee about its own decisionmaking. Once a plaintiff proves that age actually played a role, Justice Breyer believed the statute has been violated.

Justice Breyer regarded the same-decision showing as a sensible affirmative defense, rather than an element the employee must disprove. The employer is better positioned to prove that it would have reached the same result without considering age. He therefore viewed the District Court's instruction—liability if age was a motivating factor, but a defense if FBL proved it would have demoted Gross anyway—as lawful and fair.