129 S. Ct. 2343; 2009 U.S. LEXIS 4535
In Gross , the Supreme Court reconsidered the question, originally posed in the gender discrimination case of Price Waterhouse v. Hopkins , whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive jury instruction – in a suit brought under the Age Discrimination in Employment Act of 1967. The Court expanded this question and held 5-4 that a mixed motives jury instruction is, in itself, never proper in an ADEA case.
Gross began employment at FBL in 1971, at age 32, and in 2001 had been promoted and was serving as “claims administration director.” In 2003, at age 54, he was re-assigned to the position of “claims project coordinator” and his former duties were assigned to Kneeskern, who was given a new position as “claims administration manager.” Kneeskern was in her early 40’s and had been supervised by Gross. Gross deemed this reassignment to be an adverse employment action ( i.e
., a demotion) based on his age, and he filed suit under the ADEA. FBL argued that these assignments were based on a corporate restructuring and that Gross’ new duties were
“more in line with his skills.” The federal District Court instructed the jury that Gross was entitled to a verdict in his favor if he proved, by a preponderance of the evidence, that FBL’s action constituted a demotion, and that age was “a motivating factor” – that is, if age “played a role” in
FBL’s decision to reassign Gross. If, however, FBL affirmatively proved that it would have reassigned Gross regardless of his age, FBL would partially prevail. The jury returned a verdict for Gross, and awarded him lost compensation.
The Eighth Circuit Court of Appeals reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins , which had been read in accord with Justice
O’Connor’s concurring opinion to shift the burden of proof to the employer in a Title VII gender bias case only where the plaintiff had direct evidence that sex motivated its decision.
In response to the reading being given to Price Waterhouse by lower courts (the O’Connor reading), Congress amended Title VII to add 42 U.S.C. § 2000e-2(m), explicitly authorizing discrimination claims in which an improper consideration was "a motivating factor" for an adverse employment decision – and the Supreme Court held, in 2003, in Desert Palace, Inc.
v. Costa ( see
Belton et al ., Chapter 3, Section B3), that such a showing by a plaintiff in so-called “mixed motive cases” shifted the burden to the employer to affirmatively prove that it would have made the same decision absent consideration of race, sex, or other traits protected by Title VII. If the employer successfully proved that legitimate factors also motivated its decision, plaintiff’s remedies were limited to those specified in § 2000e-5(g)(2)(B).
In Gross , a bare majority of the justices held that the statutory framework adopted by Congress in
Title VII and affirmed in Costa , does not apply in cases brought pursuant to the Age
Discrimination in Employment Act – reasoning that when Congress amended Title VII to abate the “O’Connor” reading of Price-Waterhouse , its 1991 amendments did not add a similar provision to the ADEA. The majority holds that a plaintiff bringing a disparate-treatment claim pursuant to the 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 to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was a motivating factor in that decision . (emphasis added). This makes the direct evidence vs . circumstantial evidence issue in Price Waterhouse irrelevant.
The majority’s rationale rests on a strict reading of the ADEA’s language that “It shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” See 29 U.S.C. § 623(a)(1) (emphasis added by the Court). The majority holds that the emphasized words “because of” mean “by reason of: on account of.” [citing Webster's Third New International Dictionary 194 (1966), Oxford English

Dictionary 746 (1933), and The Random House Dictionary of the English Language 132 (1966)].
Beyond dictionary support, the majority relies principally upon the Court’s prior decision in Hazen
Paper Co.
v. Biggins (1993), which it sees as holding that plaintiff’s claim “cannot succeed unless the employee’s protected trait [not only] played a role in [the employer's decisionmaking] process
[but also] had a determinative influence on the outcome ” (emphasis added by the majority). Cf . 14
Penn Plaza LLC v. Pyett , 129 S. Ct. 1456 (2009), declining to introduce a qualification into the
ADEA that is not found in its text, and Meacham v. KAPL.
Justices Stevens, Souter, Ginsburg and Breyer dissent, reasoning that the “but for” test applied by the majority finds its origin in Justice Kennedy’s dissent in Price Waterhouse (construing the same language in Title VII), and that this test was explicitly rejected by the Court. The dissent criticizes the majority for considering the question whether a mixed motive instruction is ever appropriate in an ADEA case ( i.e
., asking the Court to overrule Price Waterhouse with respect to its application to the ADEA). That question, Justice Stevens observed, was not raised in the petition for certiorari – which raised only the question whether a plaintiff in an ADEA case must present direct evidence of age discrimination in order to shift the burden of proof to the defendant to affirmatively establish that other legitimate factors would have resulted in the same employment action. “To construe the words ‘because of’ as colloquial shorthand for ‘but-for’ causation…” he wrote, “…is to misunderstand them.” The majority’s use of dictionary definitions is overstated, as dictionary definitions do not define “because of” as “ solely by reason of” or
“ exclusively on account of” as the “but for” test requires. (emphasis by the dissent). More important, the Price Waterhouse mixed motive causation analysis “repudiated the ‘but for’ test twenty years ago” and instead asks whether sex was “a motivating factor” in the employment decision.
The dissenters stress that Hazen Paper Co.
and Reeves v. Sanderson Plumbing, on which the majority also relies, support the conclusion that the ADEA should be interpreted consistently with
Title VII. In those non-mixed-motives ADEA cases, the Court followed the standards set forth in non-mixed-motives Title VII analysis as developed in McDonnell Douglas, Burdine , and Reeves .
Finally, the dissent underscores that Congress rendered a “but for” test moot when it enacted
§ 2000e-2(m) in 1991, establishing that an “unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” The flaw in the majority’s argument that this amendment is inapplicable to the ADEA is that the amendment redefines Price Waterhouse’s construction of the words “because of” in mixed motive cases, and that construction was applied in ADEA cases like Reeves . Moreover, the Court’s subsequent decision in Smith v. City of Jackson (2005) held that the “ Wards Cove's pre-1991 interpretation of Title VII's identical language remains applicable to the ADEA… If the Wards
Cove disparate-impact framework that Congress flatly repudiated in the Title VII context had been applied to ADEA claims, the mixed-motives framework that Congress substantially endorsed surely applies.”
In any event, any question as to the requirement of direct evidence in mixed motives Title VII cases was settled, with Justice O’Connor’s concurrence, in Desert Palace , in which the Court held that a plaintiff need not introduce direct evidence to meet her burden in a mixed-motives case under Title VII, as amended by the Civil Rights Act of 1991 – and Reeves , as cited by
Desert Palace , perpetuates the Court’s recognition of the utility of circumstantial evidence in
ADEA cases and makes clear that no language in the ADEA imposes a heightened direct evidence standard. See also Swierkiewicz v. Sorema N. A.
, 534 U.S. 506 (2002) and O'Connor v.
Consolidated Coin Caterers Corp.
, 517 U.S. 308 (1996).
Justice Breyer writes separately to emphasize that, unlike traditional torts cases, where
“reasonably objective scientific or commonsense theories of physical causation make the concept of "but-for" causation comparatively easy to understand and relatively easy to apply,” a “but-for” test is a potentially impossible hurtle for a plaintiff in employment discrimination law cases dealing with, “not physical forces, but the mind-related characterizations that constitute motive.” In such
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cases, the law does not automatically find liability. “In Price Waterhouse , the plurality recognized an affirmative defense where the defendant could show that the employee would have been dismissed regardless (of the consideration of her gender). The law permits the employer this defense, not because the forbidden motive, (here age), had no role in the actual decision, but because the employer can show that he would have dismissed the employee anyway in the hypothetical circumstance in which his age-related motive was absent. And it makes sense that this would be an affirmative defense, rather than part of the ( prima facie ) showing of a violation, precisely because the defendant is in a better position than the plaintiff to establish how he would have acted in this hypothetical situation.” (emphasis added).
Query: Does the Gross case effectively re-interpret Reeves so as to virtually eliminate an employee’s ability to establish an employer’s liability under the ADEA, except in the most egregious of cases?
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