Recent Developments in ADEA Case Law
Due to a number of factors, such as baby-boomers reaching retirement age and employers being forced to make some tough economic decisions over the past year, claims under the Age Discrimination in Employment Act (hereinafter “ADEA”)1, which offers certain protections to workers over age 40, rose 29% in 2008 over 2007.2 While some of these employees may acknowledge that economic factors played a role in the decision to fire them, they also feel that they may have been let go, and their younger co-workers retained, due to age discrimination. Such cases are a classic example of “mixed-motive” claims brought under the ADEA, which in June of 2009 became more difficult to prosecute when the United States Supreme Court decided the case of Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (U.S. 2009). In Gross, the Court held that plaintiffs alleging intentional age discrimination must prove by a preponderance of the evidence that age was the “but-for” cause of the challenged termination or other adverse employment action. Previously, an employee only had to show that age was a “motivating” factor in their termination, at which point the burden shifted to the employer to show that it would have taken the action without regard to the impermissible consideration, i.e., age.
In Gross, a longtime employee of FBL was reassigned to the position of claims project coordinator (from that of claims administration director) when he was 54-years-old. Even though his salary did not decrease, Gross considered the reassignment a demotion because his previous title and duties were given to a woman in her early forties whom he used to supervise. This prompted Gross to file suit under the ADEA. At trial, Gross introduced evidence suggesting that his reassignment was based at least in part on his age. FBL defended the decision on the grounds that Gross’ reassignment was part of a corporate restructuring and that his new position was better suited to his skills. At the close of trial, the District Court gave a “mixed-motive” instruction to the jury, instructing that it must return a verdict for Gross if he proved by a preponderance of the evidence that “age was a motivating factor” in his demotion.3 The trial court also instructed that the jury had to return a verdict for JBL if it proved that it would have demoted Gross regardless of his age.4
FBL challenged the instructions on appeal, where the Eighth Circuit found, based on the Supreme Court decision in Price Waterhouse v. Hopkins, that the instructions were flawed because they allowed the burden to shift to FBL upon a presentation of a preponderance of any category of evidence showing that age was a motivating factor.5 According to the Eighth Circuit, Gross was required to present “direct evidence,” or evidence showing “a specific link between the alleged discriminatory animus and the challenged decision,” in order to shift the burden to FBL to “convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor.” Gross acknowledged that his evidence of discrimination was circumstantial, not direct, and as a result, the Eighth Circuit concluded that he was not entitled to a mixed-motive instruction.
However, the Supreme Court vacated the Court of Appeals decision based on a textual comparison between the ADEA and Title VII. Subsequent to the Price Waterhouse decision, Congress amended Title VII to explicitly authorize discrimination claims in which an improper consideration was “a motivating factor” in the adverse employment decision. By contrast, the Court noted that the ADEA provides, in relevant part, that it shall be unlawful for an employer to discriminate “because of such individual’s age.” The Court further reasoned that the ordinary meaning of the ADEA’s requirement that the employer took adverse action “because of” age meant that age was the “reason” the employer decided to act. As such, to establish a disparate treatment claim under the plain language of the ADEA, a plaintiff must prove that age was the “but-for” cause of the adverse action. Moreover, the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when the plaintiff has produced evidence that age was one motivating factor in that decision.
On its face, this decision has the potential to dramatically change the landscape for employees as employers motivated only in part by age may not be liable for discrimination. Moreover, its impact ultimately may spread beyond federal ADEA claims as many states also proscribe employment discrimination “because of” certain traits. For example, Florida’s Civil Rights Act makes it unlawful for an employer to discriminate against an employee “because of such individual’s race, color, religion, sex, national origin, age, handicap or marital status.”6 However, it remains to be seen how state courts will apply the Supreme Court’s analysis in interpreting parallel statutes. This decision may also spark legislative action, as Congress previously acted when it felt the courts were imposing too rigid a standard with regard to Title VII. It will be interesting to see whether Congress elects to reconcile the anti-discrimination statutes by now modifying the ADEA in a manner similar to the Title VII amendment. We will address these developments as they occur in future editions of the Quarterly.
1 29 U.S.C. § 623
2 EEOC Litigation Statistics, FY 1997 through FY 2008. EEOC enforcement suits filed in the federal district courts only.
3 Id. at 2347.
4 Id. at 2347.
5 Price Waterhouse v. Hopkins, 409 U.S. 228 (1989)(if a Title VII plaintiff shows that discrimination was a “motivating” factor in the employer’s action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration; to shift the burned to the employer, the employee must present “direct evidence that an illegitimate criterion was a substantial factor”).
6 Fla. Stat. § 760.10.
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