On June 18 the United States Supreme Court issued its opinion in the case of Gross v. FBL Financial Services, an age discrimination case arising out of Iowa. We first reported on the Gross case when the Court heard arguments a couple of months ago. Since the decision was issued, many commentators have opined that the ruling was a "win" for employers because it will make it more difficult for employees to prove age bias.
This case presents a fairly typical age discrimination claim: the plaintiff, Jack Gross, was a 54 old middle manager who reassigned as part of a reorganization and replaced by a younger employee he used to supervise. Although his pay was not reduced, Gross nonetheless believed his new assignment was a demotion, and filed a lawsuit alleging age discrimination. The case was tried in the U.S. District Court for the Southern District of Iowa. The jury found Gross was a victim of age discrimination and awarded him $47,000 in damages.
The trial judge gave the jury a "mixed motive" instruction. That means there was evidence the employment decision was motivated by both permissible and impermissible factors. If the plaintiff proved that age was a motivating factor in the decision to demote him, the burden shifted to the employer to prove it would have taken the same action "regardless of age"; that is, the other factors that motivated the decision would have resulted in the same action despite the plaintiff’s age.
FBL appealed the verdict to the U.S. Court of Appeals for the Eighth Circuit. The Circuit Court decided that the trial judged erred in his instructions to the jury, and returned the case for a new trial. The Eighth Circuit held the court should not have imposed upon FBL the burden of proving the "same decision", because Gross did not have "direct evidence" of discrimination. "Direct evidence" generally means statements or actions by the relevant decision makers that tend to show in a direct way the decision maker is biased. In Gross’ case, he had no such direct evidence of discrimination, and so relied entirely upon circumstantial evidence. In a case lacking direct evidence of discrimination, the Circuit court held that, the burden of proving age discrimination should have remained with the plaintiff, rather than shifting the burden to the employer to prove that factors other than age prevailed in the decision making process.
The issue presented to the Supreme Court was whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed motive instruction in an age discrimination case. However, Justice Thomas, writing for a 5-4 majority, did not ever address that particular question. Rather, the Court concluded the text of the Age Discrimination in Employment Act (ADEA) does not permit an employer to be liable based upon a "mixed motive". In other words, it is never sufficient for a plaintiff to prove simply that age was a motivating factor; rather the plaintiff in an ADEA claim must prove the adverse action occurred "because of" age-it must be the motivating factor. Moreover, the burden of proving discrimination always rests with the plaintiff; it does not shift to the employer.
The case will now return to the U.S. District Court for the Southern District of Iowa for another trial. This time, the jury will be instructed consistent with the standard articulated by the U.S. Supreme Court. It may be more difficult for Jack Gross to prove his age was the motivating factor his his new assignment, rather than simply a motivating factor. This one word change in the jury instruction, combined with the employer having no burden to prove the same decision defense, should make it easier for employers to prevail in age cases, particularly at trial, but perhaps also at the summary judgment stage. Trial courts are likely to require plaintiffs to present both more and stronger proof of discrimination to clear the summary judgment hurdle.
What doe the future hold for ADEA cases? It is possible Congress will step in an amend the ADEA to bring back the mixed motive instruction. That is precisely what Congress has done in the past to remedy Court decisions it deemed unfair to employees. As noted in prior posts, the present Congress and President have been particularly active in enacting new employment laws to protect employees, and thus it would not be surprising to see Congressional action in the wake of the Gross decision.
We will continue to monitor developments in this area and keep you posted.