Labor and Employment Update

Supreme Court Rejects “Mixed Motive” Theory Under the ADEA

Yesterday, the Supreme Court issued its decision in Gross v. FBL Financial Services, Inc., No. 08-441 (U.S. 6/18/09). In a 5–4 decision, the Court held that the “mixed motives” theory of discrimination is not applicable to cases brought under the Age Discrimination in Employment Act (“ADEA”).

The plaintiff in Gross, sued his employer, alleging that his age was a factor in a demotion. Over the defendant’s objection, the plaintiff asked for and received a “Price Waterhouse” mixed motive instruction; i.e., that the jury could find in plaintiff’s favor if age was a factor (but not necessarily a “but for” cause) in the decision and if defendant did not prove that it would have made the same decision in the absence of age. The jury returned a verdict in favor of the plaintiff, and the defendant appealed, primarily on the theory (from Justice O’Connor’s concurring opinion in Price Waterhouse) that to obtain a mixed motive instruction, a plaintiff must present “direct” evidence that a discriminatory factor was part of the reason for the adverse employment decision. The Eighth Circuit Court of Appeals agreed with defendant’s contention and so reversed and remanded the case for a new trial.

The Supreme Court decided that it need not reach the question whether direct evidence is a required element of a plaintiff’s proof in a mixed motive case. Rather, the Court held that the mixed motive theory of discrimination is “never proper in an ADEA case.” Thus, plaintiffs in such cases must prove that age was a “but for” cause of the adverse employment action (i.e., that the action would not have been taken but for the plaintiff’s age). The Court based its decision on the fact that when Congress amended Title VII in 1991 to incorporate the mixed motive theory under Price Waterhouse, it did not amend the ADEA to do the same (even though Congress amended the ADEA in other minor respects at around the same time).

Gross is significant in several respects. First, it reverses the law of many circuits (including that of the Fifth Circuit) which had applied the mixed motive theory to age discrimination cases. Second, the opinion will be important to pending ADEA trials or appeals in which the claim had been brought in whole or in part under a mixed motive theory. Third, the decision makes clear that employers do not bear the burden of proof to show that the same action would have been taken regardless of the plaintiff’s age even if there is some evidence that age may have played a role in the decision; rather, plaintiffs will have to convince the finder of fact that age was a “but for” cause of the adverse action.

Finally, the majority opinion criticizes the mixed motive approach in general and specifically on the ground that it has led to much confusion in jury cases. While this will not change the applicable law in Title VII cases, it may furnish a compelling argument in future cases that the mixed motive theory should not be applied to discrimination cases under other laws where Congress has not expressly and specifically incorporated that theory into the applicable statute. It remains to be seen whether there will be Congressional efforts to amend the ADEA to effectively nullify this precedent.