Gross v. FBL Financial Services, Inc.

Supreme Court of United States
129 S. Ct. 2343 (2009)

ELI5:

Rule of Law:

A plaintiff bringing a claim under the Age Discrimination in Employment Act of 1967 (ADEA) must prove by a preponderance of the evidence that age was the 'but-for' cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer in a mixed-motives case to show it would have made the same decision regardless of age.

Facts:

Jack Gross began working for FBL Financial Group, Inc. (FBL) in 1971 and held the position of claims administration director as of 2001.
In 2003, at age 54, FBL reassigned Gross to the position of claims project coordinator.
At the same time, FBL created a new position, claims administration manager, and transferred many of Gross's former job responsibilities to it.
The new, higher-level position was given to Lisa Kheeskern, a woman in her early forties whom Gross had previously supervised.
Although Gross's compensation remained the same, he considered the reassignment a demotion due to the loss of his former responsibilities.
FBL defended its decision, stating that the reassignment was part of a corporate restructuring and that Gross's new role was better suited to his skills.

Procedural Posture:

Jack Gross filed suit against FBL Financial Group, Inc. in U.S. District Court, alleging his reassignment violated the ADEA.
At trial, the court gave the jury a 'mixed-motives' instruction, allowing a verdict for Gross if his age was a 'motivating factor' in the decision.
The jury returned a verdict in favor of Gross.
FBL appealed to the U.S. Court of Appeals for the Eighth Circuit, arguing the jury instructions were erroneous.
The Court of Appeals reversed and remanded for a new trial, holding that a mixed-motives instruction was only proper if the plaintiff presented direct evidence of discrimination, which Gross had not.
Gross petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.

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Issue:

Does the burden of persuasion shift to the employer in a mixed-motives age discrimination claim brought under the Age Discrimination in Employment Act of 1967 (ADEA), requiring the employer to prove it would have made the same decision regardless of age?

Opinions:

Majority - Justice Thomas

No. The burden of persuasion does not shift to the employer in an ADEA case; a plaintiff must prove that age was the 'but-for' cause of the adverse employment action. Unlike Title VII, the ADEA’s text prohibiting discrimination 'because of' age requires a showing of 'but-for' causation, meaning age was the determinative reason for the employer’s decision. The burden-shifting framework established for Title VII mixed-motives cases in Price Waterhouse v. Hopkins does not apply to the ADEA. When Congress amended Title VII in 1991 to explicitly authorize 'motivating factor' claims, it did not make a similar change to the ADEA, an omission the Court presumes was intentional. Therefore, the plain text of the ADEA controls, and a plaintiff retains the burden of persuasion throughout the case to prove that 'but for' their age, the adverse action would not have occurred.

Dissenting - Justice Stevens

Yes. The mixed-motives burden-shifting framework should apply to the ADEA. The Court's holding departs from the long-standing precedent of interpreting the ADEA's 'because of' language consistently with Title VII's identical language. In Price Waterhouse, the Court rejected the 'but-for' standard for Title VII, interpreting 'because of' to mean the protected trait was a 'motivating factor.' Congress later ratified this 'motivating factor' standard when amending Title VII in 1991. The fact that Congress did not amend the ADEA means that the Court's original Price Waterhouse interpretation should continue to govern ADEA claims. The majority's decision inappropriately creates a stricter standard of proof for age discrimination than for other forms of discrimination and unnecessarily complicates litigation.

Dissenting - Justice Breyer

Yes. The mixed-motives framework is appropriate for ADEA claims because the phrase 'because of' does not inherently require 'but-for' causation, especially when dealing with an employer's subjective motive. Applying a 'but-for' test requires a difficult hypothetical inquiry into what an employer might have done, a matter about which the employer has more knowledge than the employee. Once a plaintiff proves that a forbidden motive like age played a role in the decision, it is fair and practical to shift the burden to the employer to prove it would have made the same decision anyway. The district court's instructions correctly allocated this burden.

Analysis:

This decision significantly heightened the standard of proof for plaintiffs in age discrimination cases by requiring 'but-for' causation instead of the more lenient 'motivating factor' standard used in Title VII cases. It marked a significant departure from the practice of interpreting the ADEA and Title VII in parallel, creating a split in how federal discrimination claims are analyzed. By refusing to shift the burden of persuasion to the employer in mixed-motives scenarios, the Court made it substantially more difficult for older workers to succeed in discrimination claims, as they must now prove that age was the decisive factor, not merely a contributing one, in an adverse employment action.

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