Supreme Court Applies More Stringent ‘But For’ Standard of Proof in Age Cases in Gross v. FBL Financial Services

On June 18, 2009, the Supreme Court of the United States ruled for the first time that in order to prevail in a disparate treatment case brought under the Age Discrimination in Employment Act (ADEA), the plaintiff must prove that "but for" the alleged discrimination, the employer would not have taken the "adverse employment action." Unlike a Title VII case, the burden of persuasion does not shift to the employer when the employee shows that age was one of the factors in a mixed-motive case.

In a 5-4 decision written by Justice Thomas, the majority held that it would not extend the "mixed motive" analysis applicable to Title VII cases to ADEA cases. In Title VII cases, which prohibit discrimination based on race, sex or national origin, where an employer is motivated by both a permissible factor and an impermissible factor, (i.e. a mixed motive), the Court, historically, has applied the well-known burden-shifting analysis. Thus, if the plaintiff meets his or her initial burden of persuasion by demonstrating that the employer considered an impermissible factor, such as race, in taking an adverse action against the plaintiff, the burden then switches to the employer to prove that it would have taken the same adverse action in any event. Gross v. FBL Financial Services, Inc., No. 08-441.

The case was brought by Petitioner Jack Gross (Gross), who claimed that his employer, FBL Financial Group, Inc. (FBL), demoted him because of his age. At the time of his demotion he was 54. His duties were transferred to a woman who, at the time, was in her early forties. At trial, Gross presented evidence that age played a role in FBL's decision. The jury returned a verdict for Gross at the trial court level, after the trial judge, over FBL's objection, instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that age was a "motivating factor" when FBL demoted him. The trial court also instructed the jury that it must find for FBL if it found that FBL would have demoted Gross regardless of his age.

On appeal to the U.S. Supreme Court, the majority held that the burden-shifting analysis does not even apply in a mixed-motive case brought under the ADEA. In reaching this conclusion, the majority noted that after the Price Waterhouse decision of 1989, which discussed the proper allocation of the burdens of persuasion in mixed-motive cases brought under Title VII, Congress explicitly amended Title VII, in 1991, by authorizing discrimination claims in which an improper consideration was a "motivating factor" for an adverse employment decision, even though other factors also motivated the adverse action. Since Congress limited its amendment to Title VII claims, the majority refused to apply the language of the amendment to the ADEA.

The Court concluded by interpreting the plain language of the ADEA, which prohibits various types of discrimination in employment "because of" age. The majority interpreted the phrase "because of" to mean that age was "the reason" that the employer decided to act. The majority concluded: "Thus, to establish a disparate treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the 'but-for' cause of the employer's adverse action." The plaintiff, therefore, retains the burden of persuasion throughout the case.

There were strong dissents written by Justice Stevens with whom Justices Souter, Ginsburg and Breyer joined. They stated that the "but for" standard was rejected in Price Waterhouse and that it should be rejected in cases alleging violations of the ADEA as well, since both statutes use identical language in prohibiting discrimination (i.e., both statutes prohibit adverse employment actions "because of" the impermissible factor). Moreover, there is precedent that Title VII analysis has historically been applied to the ADEA.

One of the most interesting questions that the Gross case raises is whether the Court's holding will extend to other discrimination statutes. Most notably is the Americans With Disabilities Act (ADA), which prohibits discrimination "because of" a disability. Even though the ADA, like the ADEA and Title VII, prohibits discrimination "because of" the protected category, the Supreme Court, if faced with the right facts, could apply the "but for" test to ADA claims, since, like the ADEA, discussed in Gross, Congress did not amend the ADA when it amended Title VII in 1991.

We will continue to follow these developments.