Supreme Court Clarifies Burden Of Proof In Age Discrimination Cases
By Cindy Caplan and Jing Li
On June 18, 2009, in a 5-4 decision the Supreme Court held that a plaintiff bringing an age discrimination case under the Age Discrimination in Employment Act of 1967 (the “ADEA”) must prove by a preponderance of the evidence, that age was the “but-for” cause of the employment decision. The Supreme Court further held that even if the employee presents some evidence that age was a factor, the burden of proof does not shift to the employer to show that it would have acted regardless of plaintiff’s age.
Plaintiff Jack Gross began working for FBL Financial Group, Inc. (“FBL”) in 1971. In 2003, at age 54, Gross held the position of “claims administration director.” Gross was reassigned to the position of “claims project coordinator.” At the same time, FBL transferred many of Gross’ job duties to a new position called “claims administration manager.” The new position was given to a woman in her early forties. Gross contended that the reassignment constituted a demotion and sued under the ADEA.
At trial, Gross presented evidence suggesting that his reassignment was based at least in part on his age. FBL contended that the reassignment was part of a corporate restructuring. Over FBL’s objections, the District Court instructed the jury that it must return a verdict for the Plaintiff if it found that “age was a motivating factor” in the demotion. The jury was further instructed that Gross’ age would be considered a motivating factor if it “played a part or a role in [FBL’s] decision to demote him.” The jury was also instructed that if FBL proved by a preponderance of the evidence that it would have demoted Gross regardless of his age, the jury must find in FBL’s favor. The jury found in favor of Gross and awarded him $46,945.
On appeal, the Eighth Circuit held that the jury had been incorrectly instructed. The Court of Appeals found that Gross needed to present “[d]irect evidence…sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action” in order to shift the burden of persuasion to FBL to establish that it would have made the same decision regardless of Gross’ age. Because Gross did not present any “direct evidence” of discrimination, the Court of Appeals found that he was not entitled to a “mixed motive” jury instruction.
The Supreme Court reversed the Eighth Circuit decision, holding that a Plaintiff bringing a disparate-treatment claim under the ADEA must prove by a preponderance of the evidence, that age was the “but-for” cause of the employment action. The Supreme Court noted that, unlike Title VII, which was amended to prohibit employment actions where a protected category was a “motivating factor” in the employment decision, the ADEA prohibits discrimination “because of” the individual’s age. Due to the distinction between the language of Title VII and the ADEA, the Court declined to apply the “mixed motive” standard applicable in Title VII cases. The Court held that the plaintiff “retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse action.” The Court noted that the burden of persuasion does not shift to the employer “even when the plaintiff has produced some evidence that age was one motivating factor in that decision.”
Although the Gross decision places a more onerous burden on Plaintiffs suing under the ADEA, it remains to be seen whether California courts will apply a similar standard to FEHA age discrimination cases.
The decision in Gross v. FBL Financial Group is here.