At a July 15 hearing in Washington, D.C., the EEOC’s acting chairman, Stuart Ishimaru, noted that age discrimination claims were up 29 percent in fiscal year 2008 over the previous year, a trend he expects will continue.
"Whether trying to retain or obtain a job, older workers may find themselves susceptible to unlawful age-based stereotypes and discrimination," Ishimaru said.
Read more about the increasing number of age discrimination suits that goes along with a graying workforce.
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Jack Gross was 54 years old and had worked for FBL Financial Group for 32 years when in 2003, as part of a company reorganization, his supervisor reassigned him. Gross considered the move a demotion because a woman in her early 40s whom Gross had previously supervised took over many of his responsibilities.
Gross filed suit under the Age Discrimination in Employment Act (ADEA). At trial, the former claims administrator presented evidence suggesting his reassignment was based at least in part on his age. The judge instructed the jurors to find for Gross if they believed his age was "a motivating factor" in the job change, and if FBL had failed to show it would have made the same decision regardless of his age. The jury found for Gross, awarding him $47,000 in lost compensation.
On appeal, the 8th Circuit reversed the decision, finding that the jury instructions were improper because the burden of proof shifts to the employer only if the plaintiff has direct evidence of discrimination, while Gross’ evidence was circumstantial.
Gross took the case to the Supreme Court. On June 18, in a 5-4 decision, the high court surprised many observers by limiting age discrimination claims even further than the defendant had asked. In an opinion authored by Justice Clarence Thomas, the court majority said that regardless of whether the evidence of discrimination is direct or circumstantial, the burden is on the plaintiff to show that his or her age was the sole, or "but-for," reason for the employer’s decision. So it is no longer sufficient for plaintiffs to show that age discrimination was one of the reasons for the adverse action—the so-called "mixed motive" claim.
With age discrimination cases soaring, employment law defense attorneys welcomed the decision in Gross v. FBL Financial Services Inc., which may result in more ADEA cases being dismissed on summary judgment. But some warned that the case’s impact may be short-lived, as advocates for older workers immediately called for congressional action to reverse the ruling.
Gross Subtext
Lower courts consistently have allowed mixed-motive ADEA actions, with the burden shifting to the defendant to prove the same action would have been taken regardless of the defendant’s age, on the grounds that such actions are explicitly allowed under Title VII for race, gender and other types of discrimination cases. Those cases rested on the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, in which the court held that in Title VII cases, when an employee proves discrimination played a part in an employment decision—even if other factors were involved—the employer must prove it would have made the same decision regardless of the employee’s protected trait.
Sarah Kelly, a member of Cozen O’Connor, points out that the shifting of the burden of proof to the defendant in Price Waterhouse is unique in American law.
"What the court was saying [in Gross] is that type of burden-shifting is such a different construct in American law that we aren’t willing to [apply it to age discrimination cases] absent the clearest of directives" from Congress, she says.
Indeed, Justice Thomas noted that when Congress amended Title VII in 1991 to authorize mixed-motive claims, it did not similarly amend the ADEA. Thomas concluded this omission demonstrated Congress’ intent to preclude ADEA claims where age was simply a motivating factor.
"It’s a good decision for employers, although a little bit surprising because of all the case law that said the ADEA would be interpreted similarly to Title VII," Kelly says.
"The subtext of the Gross decision is that the Supreme Court is saying age is not as nefarious a basis for discrimination [as race, gender, etc.] because it is not as inherently offensive to our values."
Just the Facts
While clearly a pro-employer decision, how much impact Gross will have remains debatable. Gaye Huxoll, a shareholder at Littler Mendelson, doesn’t think it will slow the current rise in age discrimination claims.
"If you want to be a stickler, you could say it precludes certain people from bringing an age claim, but mostly it’s just a matter of how you go about proving or disproving claims once they are filed," she says. "When people bring discrimination claims, they have a strong belief that their protected status was the reason for the discrimination. They go into it thinking, ‘I can prove it was my age.’"
Gross may result in more summary judgment decisions for employers, but it may prove to be relatively unimportant for cases that go to trial.
That’s because it’s very difficult to explain a standard of proof to a jury, according to Michael Duffee, a partner at Ford & Harrison. "Trying to explain these distinctions to lay people is like trying to explain color to a blind man," he says. "Based on my experience, the jury will look at the facts and say, ‘Did the plaintiff show he was put upon because of age?’ If they think he was, he will win."
As a result, employment lawyers stress that Gross shouldn’t lull employers into ignoring age discrimination in the workplace, particularly when downsizing.
"In the current environment, if all the people who are laid off happen to be old people, you’re going to have a problem. The jury isn’t going to look at burden of proof—they are going to look at what happened," Duffee says. "That’s what juries do."
Rallying Cause
But even if Gross has little impact on age discrimination litigation, it may spur Congressional action to change the ADEA, which could have far reaching consequences.
Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, immediately suggested amending the ADEA to nullify the high court’s action. And at an EEOC hearing in mid-July (see "Senior Stereotypes"), panelist Cathy Ventrell-Monsees, president of Workplace Fairness, a non-profit employee rights organization, called on Congress to eliminate the differences between the ADEA and Title VII. Those differences include standards of proof for disparate treatment claims, as well as for mixed-motive cases.
"While on paper Gross is a good decision for employers, the concern I have is that the end effect will be negative because it will be the rallying cause for some new legislation—not just to change the burden of proof and provide for mixed motive [in age cases], but also to make some other changes," says Gregg Lemley, a shareholder at Ogletree Deakins.