Eighth Circuit Once Again Reviews Age Discrimination Burden of Proof--This Time Under ICRA
Age discrimination cases tried in the Southern District of Iowa continue to generate controversy over how juries should be instructed about the plaintiff’s burden of proof. First it was Gross v. FBL Financial Services, Inc., tried in the Southern District and ultimately decided by the U.S. Supreme Court in June 2009. Then it was the Eighth Circuit's remand decision in Gross, and now a third case from the Eighth Circuit (via the Southern District of Iowa), Newberry v. Burlington Basket Co., issued September 28, 2010.
Even though Newberry was tried in federal court, the issue involved the proper jury instructions for age discrimination claims under the Iowa Civil Rights Act (ICRA). The plaintiff alleged her termination violated both the federal Age Discrimination in Employment Act (ADEA) as well as the ICRA. As is typical in cases alleging violations of both federal and state law, the federal court assumed jurisdiction over the state law claims as well as the federal claims.
The trial court in Newberry instructed the jury the plaintiff had the burden to prove her age was “a determining factor” in the employer’s decision to terminate her. After a verdict for the plaintiff, the employer appealed on the ground that the instruction was not consistent with the new standard of proof the U.S. Supreme Court articulated in Gross (coincidentally, the verdict was returned the day the Gross decision was issued). In Gross, the Court held that a plaintiff alleging discrimination under the ADEA must prove that age was the "but-for" reason for the employment action, a more rigorous test than "a determining factor."
Despite the erroneous instruction under the ADEA, the Eighth Circuit affirmed the jury verdict because, the court concluded, the "a determining factor" instruction was proper under the ICRA. The Circuit Court relied upon the Iowa Supreme Court's decision in DeBoom v. Raining Rose, which expressly adopted the Eighth Circuit's model jury instruction for sex discrimination claims under Title VII for such claims arising under the ICRA. The model jury instruction provides that liability is imposed if sex was "a motivating factor" in the employment decision ("a motivating factor" was deemed to be substantially equivalent to "a determining factor"). Because prohibitions on age and sex discrimination are both contained in the ICRA (unlike federal law, where prohibitions against age and sex discrimination are contained in two different laws), the court held that DeBoom also controlled the instructions for an age claim under ICRA.
Notably, the court in Newberry was presented with what seemed to be precisely the same question it was presented with in the Gross remand, but reached a different result. The plaintiff is Gross also asked the court to affirm his jury verdict because the "a motivating factor" instruction complied with the ICRA, even though it was error under the ADEA based upon the Supreme Court's ruling. However, Judge Colloton, who also wrote the opinion in Newberry, rejected the plaintiff's request and granted a new trial.
Why the different result? It appears the difference lies in the fact that the Gross jury was also instructed on a version of the "same decision" defense. The "same decision" defense requires the employer to prove it would have made the "same decision" even with the presence of unlawful discrimination. Before the U.S. Supreme Court's decision in Gross, this was part of the so-called "mixed motive" instruction. Newberry, on the other hand, was tried and instructed as a "pretext" case, so no burden was placed upon the employer to prove the same decision defense.
Unfortunately, Newberry raises more questions than it provides answers. One certainty lawyers can take from Newberry is that, so long as the case is a "pretext" case and is being tried in federal court, "a motivating factor" is the proper instruction under the ICRA for any type of protected characteristic. But, many other questions remain. What happens in a "mixed motives" case? Does the same decision defense apply, as Iowa Appellate court precedent seems to suggest? Or, like age claims under the ADEA, is the same decision defense no longer available? Moreover, the different standards that apply to age claims under the ADEA and ICRA will make it very difficult to instruct the jury if both claims are presented.
The source of the confusion is that, until now, courts have always treated claims under the ICRA and federal law as if they were identical. While that made it easier to try cases and instruct juries, it overlooks many important differences in statutory language between the ICRA and its federal counterparts. For example, unlike Title VII, the ICRA contains no same decision defense. Moreover, the ICRA, like the ADEA, prohibits discrimination "because of" a protected characteristic, which seems to be a higher burden that the "a motivating factor" jury instruction the Iowa Supreme Court has approved. Judge Colloton alluded to this inconsistency in the Newberry opinion, but noted he was bound to apply the Iowa Supreme Court’s then existing interpretation of state law. Perhaps these recent cases will provide an opportunity for the Iowa Supreme Court to look more closely at the statutory language of the ICRA and develop jury instructions that are more consistent with what the law actually says. In the meantime, there is bound to be further litigation on these issues in the years to come.
