Today, in a 5-4 decision, the Supreme Court issued its opinion in Gross v. FBL Financial Services, No. 08–441, holding that a mixed motives jury instruction is never appropriate in an Age Discrimination in Employment Act (“ADEA”) case. This decision is noteworthy in several respects, not the least of which is the heightened difficulty a plaintiff faces when attempting to prove discrimination on the basis of age.
First and foremost, the Court has significantly raised the burden of proof for age discrimination plaintiffs, holding that a plaintiff must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the adverse employment action. This represents a striking departure from the Court’s prior holdings that a Title VII plaintiff met his or her initial burden by demonstrating that an employer’s adverse action was motivated in part by an unlawful consideration. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). In doing so, the Court relied heavily on the differing language of Title VII and the ADEA, noting that Congress has amended Title VII to explicitly authorize mixed motive cases. 42 U.S.C. §2000e-2(m). Following well established tenets of statutory interpretation, the Court reasoned that had Congress intended the ADEA to permit a lessened burden of persuasion via a mixed motives theory, it would have amended the ADEA as well. Thus, the majority concluded that the mixed motives burden shifting adopted by all of the Circuit Courts has no place in ADEA cases.
Second, and perhaps just as importantly, as noted by Justice Stevens in his dissent, today’s decision is addressed to a question on which the Court did not grant certiorari. The question presented -- whether a plaintiff must first present direct evidence of discrimination before obtaining a mixed motives jury instruction in an ADEA case was disregarded. Instead, Justice Thomas invoked Rule 14.1, which provides that the Court may consider any “subsidiary question fairly included” within the question presented by the parties. Sup. Ct. R. 14.1. While the question actually addressed is arguably antecedent to the subject to the cert petition, and, therefore within the ambit of Rule 14.1, Justice Stevens correctly points out the fact that the decision appears to represent “unnecessary lawmaking.” Putting the outward appearances aside, the Court also went out of its way to cast doubt on the ongoing viability of Price Waterhouse even as it relates to common law civil rights precedent. Gross, at 10 (“it is far from clear that the Court would have the same approach were it to consider the same question today in the first instance"; "even if Price Waterhouse were doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework”).
Finally, one can’t help but ponder the net effect of this decision going forward. On one hand, the reasoning behind the Court’s decision -- strict statutory interpretation highlighting Title VII’s express language permitting the mixed motives theory -- opens the door for a broader application of this higher burden, beyond the ADEA context. Plaintiffs bringing suit under Federal statutes that are modeled or legally analogous to Title VII, such as the ADA, may be foreclosed from utilizing the Price Waterhouse mixed motives theory on the reasoning that the ADA does not contain the express language Congress added to Title VII in the 1991 Civil Rights Act. On the other hand, by singling out Congressional intent and legislative action as its basis for such a resounding change in the enforcement of Federal discrimination laws, the Court may be tempting (baiting?) Congress into reactive legislation, á la the Lily Ledbetter Act or the currently pending Arbitration Fairness Act. We’ll have to wait to see whether this decision prompts a similar reaction from Congress, but readers should note that Senator Patrick Leahy (D-Vt.), Chairman of the Senate Judiciary Committee, recently posted a harshly worded assessment of today’s decision on his website: http://leahy.senate.gov/press/200906/061809c.html.
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