Supreme Court Raises the Burden of Proof for Employees in Age Discrimination Cases

All the focus these past few weeks as been on the Supreme Court's Decision in Ricci v. DeStefano because of its connection to Supreme Court nominee Sonia Sotomayor.  However the Ricci decision will, in my opinion, only have a limited effect on the legal landscape.  The fact pattern in Ricci is one that just isn't likely to come up all that often.  (My opinion on this could change, of course, if political forces start pushing public employers towards more affirmative action efforts.)

What seems to have been lost in all the Ricci coverage, however, is the Supreme Court's decision in Gross v. FBL Financial ServicesGross is an extremely important case addressing general burden of proof issues applicable to ADEA cases.  As it will likely affect far more people than Ricci, I think it deserves a bit more coverage than it has gotten. 

In a nutshell, the Supreme Court's ruling in Gross made it extremely difficult for workers to prove claims that they were the targets of workplace discrimination because of their age.  The employee won a jury 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 reversed the case and held that an employee could only use the mixed-motive instruction in cases where there was so-called "direct evidence" (think smoking gun evidence such as a memo reading "I hate old people." from the manager) of age-related decision making.

The Supreme Court didn't really decide the issue at hand at all.  Instead it went beyond what the employer originally sought in the appeal and issued an opinion holding that is always up to the worker to prove that age was the decisive factor in the action taken by the employer.  In other words, proving that age was a "motivating factor" is insufficient; an employee must always prove that age was the but-for cause of the termination. 

The Court has rightfully, in my opinion, received quite a bit of criticism for going beyond what the original issues were in the appeal in an effort to cut the legs out from under the ADEA.  While it may seem like an arcane quibble, to lawyers it is a pretty important point.  For a variety of very sound reasons that I won't go into here, it is just something that appellate courts aren't supposed to do.  If you are someone that is aggravated by so-called "activist" judges, this opinion should make you crazy.  It doesn't get much more activist than this.  One commentator recently put it this way:

The decision is noteworthy, and not just because the court went out of its way to slap down age claims. It's unique because it went further than the facts presented or what the lawyers for the company were seeking. It was like you sue to keep your neighbor from putting up an encroaching fence and the court awards you the deed to his house.

Here are my take aways from the Gross opinion:

  • The Court has signaled that it does not like mixed-motive analysis and, given an opportunity, might seek to reverse its prior precedent in Title VII discrimination cases.
  • The Price Waterhouse mixed-motive standard will not be extended by the Court to other areas: Title IX, Title VII retaliation cases, 1983 cases, etc. 
  • Greater venue shopping will likely occur in age cases as employees may choose to file cases in state court rather than federal court.  Many state's age discrimination statutes are based on Title VII interpretation rather than the ADEA and thus should still utilize the mixed-motive analysis. 
  • Congress now has an open invitation to address this issue and make it clear what the burden of proof should be in all discrimination and retaliation cases.

Useful links:

Not Quite as Useful Link:

  • Link to my previous article on this case while it was still at the EighthCircuit.  I all but called the Eighth Circuit out in the street for a fight and predicted that the Supreme Court would take the case and reverse the decision below because it was "militantly wrong."  Well, I was right!  The Supreme Court did take the case and they did overturn the decision of the Eighth Circuit.  But I was right in a completely wrong sort of way.    My mama always told me to be careful what I wished for.  Guess I should have listened.