Gross v. FBL Financial Services, Inc., No. 08–441 (U.S. S. Ct. June 18, 2009)

By Paul Mollica

Oh, Gross! A five-justice majority of the U.S. Supreme Court takes the defense bait and, instead of deciding the issue presented, stops down the focus of proof of causation in ADEA cases to a rigid â€œbut for” standard — previously rejected by every U.S. court of appeals.

Gross v. FBL Financial Services, Inc. No. 08-441 (U.S. S. Ct. June 18, 2009): The employee-petitioner won at trial under an ADEA mixed-motive instruction, which allowed the jury to find liability based on age being “a motivating factor” in the decision.  On appeal, the Eighth Circuit held that the instruction was in error — not because the employee was barred from using a mixed-motive analysis, but that he could only do so if he had “director evidence” of age being a factor in the decision. 

In the Supreme Court, the question presented was whether under the two-decade old standard adopted under Price Waterhouse v. Hopkins â€” still presumed to apply to all employment discrimination cases not brought under Title VII and the ADA — an employee could show that age was a motivating (not determining) factor.  Up to this point, every court of appeals had held that an ADEA plaintiff could proceed under some version of Price Waterhouse.  The defense (with a switch in counsel) pulled a surprise and urged in its response brief that the Court overrule Price Waterhouse altogether.  Such requests, especially in a response brief, are not the norm.

Five to four — and you can guess who’s who here â€” the Court nearly accepts the defense invitation (see fn. 1) and, without quite overruling Price Waterhouse, holds that it will not extend that decision to the ADEA.  Opinion-author Justice Thomas — who will also be remembered as the author of the unanimous Desert Palace case (which liberalized the mixed-motive rule under the Title VII) — essentially finds that the Court’s construction of the standard for liability under the ADEA has always been a bit different than under Title VII, citing Hazen Paper and (more recently) EEOC v. Kentucky Retirement Systems. It reminds the careful reader (at fn. 2), in particular, that it “has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), utilized in Title VII cases is appropriate in the ADEA context.” 

As statutory support, the majority cites to the 1991 Civil Rights Act history that when Congress amended Title VII with 42 U.S.C. § 2000e-2(m) and -5(g)(2)(B) to selectively supercede Price Waterhouse (converting it from a defense to liability to a defense to relief), it did not contemporaneously amend the ADEA to do the same.

The majority articulates the following standard of liability under the ADEA:

“[T]he ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the ‘reason’ that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993) (explaining that the claim ‘cannot succeed unless the employee’s protected trait actually played a role in [the employer’s decision making ] process and had a determinative influence on the outcome’ (emphasis added)). 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 decision.”

Finally, the majority winks at the suggestion that Price Waterhouse ought to simply disappear altogether.  Writing about that precedent, Justice Thomas  “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance . . .Whatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply. . . even if Price Waterhouse was [were (?)] doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. Cf. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 47 (1977) (reevaluating precedent that was subject to criticism and “continuing controversy and confusion”); Payne v. Tennessee, 501 U. S. 808, 839-844 (1991) (SOUTER, J., concurring).”  I doubt that it could be clearer that Price Waterhouse, as a part of civil-rights common-law, is a dead letter for far as the five justices are concerned.  {Editor wonders here — was the pulling back from the brink, and leaving some part of Price Waterhouse intact, necessary for Justice Kennedy’s vote?}

Two dissents (the principal dissent authored by Justice Stevens, a second by Justice Breyer) vent outrage at the majority for reaching out to an issue not briefed, and taking a cleaver to seemingly long-settled law.  Writes Justice Stevens, “today the Court resurrects the [but-for] standard in an unabashed display of judicial lawmaking.”

The immediate bad news is that this case buries Price Waterhouse for all intents and purposes, not just for the ADEA, but section 1981, Title IX and other employment discrimination cases not governed directly by Title VII.  (One has to wonder whether, at least under section 1983, employees with discrimination claims against public employers may still at least argue mixed-motive under the Mt. Healthy standard.  Foot note 6 of the opinion explicitly leaves Mt. Healthy intact for constitutional decisions, but will they allow its use in equal-protection public employment cases?) 

Likewise, the decision probably dooms mixed-motive cases under the anti-retaliation sections of the ADA and Title VII, to which the mixed-motive sections have been held (by various courts) not to apply because of a quirk in the drafting. 

The longer-term bad news is that the majority furnishes snippets of language that imply an even greater degree of difficulty to prove causation under the ADEA than historically assumed by all of the U.S. Courts of Appeals.

The saving grace of the Court’s decision is that it invites Congress to ante and raise the conservative majority, as see the Pregnancy Discrimination Act of 1979, Civil Rights Act of 1991, ADAAA of 2008, the Lilly Ledbetter Fair Pay Act of 2009 and quite possibly the Arbitration Fairness Act (now in the pipelines).  (See the majority opinion’s fn. 3:  to allow such motivating-factor liability â€œis a decision for Congress to make.”)  In the long run, employees invariably wind up better off in the exchange.