Supreme Court Rejects Mixed Motive in Age Discrimination Case

The Supreme Court held 5-4 that mixed-motive claims are never permissible under the Age Discrimination in Employment Act (ADEA).

The Supreme Court held 5-4 that mixed-motive claims are never permissible under the Age Discrimination in Employment Act (ADEA). The majority distinguished precedent interpreting identical language in Title VII of the Civil Rights Act, holding that unlike race and sex discrimination, age discrimination claims place the burden on the plaintiff to show that age was the sole reason for an adverse employment action. Justice Thomas wrote for the Court, joined by Chief Justice Roberts and Justices Kennedy, Scalia and Alito. Justices Stevens and Breyer wrote dissents on behalf of themselves and Justices Souter and Ginsburg. Gross v. FBL Financial Servs. Inc, --- S.Ct. ---, 2009 WL 1685684 (June 18, 2009) (No. 08-441).

Jack Gross, 54, was transferred from his position at FBL and his former job responsibilities reassigned to a younger worker. FBL defended its action as part of a corporate restructuring. The district court gave a mixed-motive jury instruction, and Gross won a substantial award for lost compensation. The Eighth Circuit held that a plaintiff must present direct (as opposed to circumstantial) evidence of discrimination to obtain a mixed-motive instruction. The Supreme Court granted cert. on the question whether direct evidence is specifically required for ADEA mixed-motive claims, or whether any evidence will suffice, as is true under Title VII. See Desert Palace v. Costa, 539 U.S. 90 (2003).

Instead of deciding this question, the Court instead considered and accepted the argument, raised for the first time in FBL's reply brief and not briefed by Gross or amici, that mixed-motive claims are barred under the ADEA. While the dissenters attacked this course of action as "irresponsible" and "unnecessary lawmaking," Thomas defended it under the Court's rule that it may consider "every subsidiary question fairly included" in the question presented.

The Court distinguished Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that the "because of" language of Title VII permitted mixed-motive claims. Although the ADEA's language is identical to the language interpreted in Price-Waterhouse, 29 U.S.C. s 623(a)(1), Thomas distinguished that case. He emphasized that Congress, in the 1991 Civil Rights Act, specifically codified Price-Waterhouse's "motivating factor" test for Title VII but not for the ADEA. 42 U.S.C. s 2000e-5(g)(2)(B). Although the purpose of this amendment was only to eliminate a Title VII affirmative defense also created by Price-Waterhouse, Thomas reasoned that Congress made a clear, deliberate choice to permit mixed-motive claims under one statute but not the other.

Having distinguished Price-Waterhouse, Thomas stated that the "ordinary meaning" of "because of" is "solely because of," citing dictionary definitions and cases interpreting unrelated statutes. Although this was precisely the position of the dissent in Price-Waterhouse, Thomas made the bold assertion that "it is far from clear" that Price-Waterhouse would be decided the same way today. Remarkably, Thomas appeared to suggest that today's Court has generally abandoned a flexible, purposive approach to statutory interpretation in favor of a more mechanistic, literal approach. Thomas further stated that Price-Waterhouse should not be "extended" because its burden-shifting framework has proved to be "difficult to apply."

The majority concluded that under the ADEA, a plaintiff must show by a preponderance of evidence that age was a "but-for" cause of the employer's actions, and the employer need never show that it would have made the same decision regardless of age. The result is to make age discrimination claims substantially harder to win than race or sex discrimination claims.

Justice Stevens attacked the majority for its "utter disregard of our precedent and Congress's intent" in resurrecting a but-for standard long since rejected by both the Court and Congress. (Prof. Deborah Widiss makes a similar criticism here.) He argued that "the most natural reading" of "because of...age" is to prohibit actions motivated in whole or in part by age, and that the dictionary definitions cited by Thomas simply did not support the majority's conclusion. Stevens also argued that it is not for the Court to reject as "unworkable" a mixed-motive framework specifically blessed by Congress, albeit under a slightly different statute. Stevens concluded that mixed-motive claims are viable under the ADEA, and per Desert Palace, do not depend on any distinction between direct and circumstantial evidence.

Justice Breyer attacked the majority for failing to explain why "because of" must mean "but for." He noted that while a but-for standard may be straightforward in tort cases involves only physical causation, but is much more difficult to questions of motive. Breyer suggested that the pre-amendment Price-Waterhouse standard, affording an affirmative defense where the defendant shows it would have made the same decision regardless of age, would be appropriate, and that the instruction in this case was valid under that standard.