Issues
Whether, when an employee sues his employer for violating the Age Discrimination in Employment Act, the employee or the employer bears the burden of proof on the issue of whether the employee's age was the determining cause of the employer's conduct.
Jack Gross sued his employer FBL Financial Group, Inc. ("FBL") in 2004, claiming that FBL had demoted him due to his age in violation of the Age Discrimination in Employment Act ("ADEA"). Under the trial judge's instructions to the jury, Gross had to prove by circumstantial or direct evidence that his age was a motivating factor in FBL's decision to demote him. The burden then shifted to FBL to prove that Gross's age was not the determining factor, and that it would have demoted Gross regardless of his age. The jury ultimately found for Gross. The United States Court of Appeals for the Eighth Circuit, however, reversed and remanded for a new trial, holding that Price Waterhouse v. Hopkins ("Price Waterhouse") requires plaintiffs to present direct evidence to shift the burden to the defendant, and that Gross had presented only circumstantial evidence. Though Price Waterhouse dealt with Title VII claims, the Eighth Circuit held that ADEA claims should be treated similarly and rejected Gross's claim that Price Waterhouse no longer applied. In this case, the Supreme Court may determine the applicability of Price Waterhouse and the burden of proof in ADEA cases.
Questions as Framed for the Court by the Parties
Must a plaintiff present direct evidence of discrimination in order to obtain a mixed motive instruction in a non-Title VII discrimination case?
Facts
Jack Gross began working at FBL Financial Group, Inc. ("FBL") in 1987. See ("Gross"), 526 F.3d 356, 358 (8th Cir. 2007). FBL frequently promoted Gross and eventually appointed him to the position of Claims Administration Director. See In 2003, however, when Gross was 54, FBL reassigned him to Claims Project Coordinator and gave most of his previous job responsibilities to another employee who was then in her early forties. See ; , Jack Gross at 2.
In 2004, Gross sued FBL in the U.S. District Court for the Southern District of Iowa, claiming that FBL had demoted him in 2003 due to his age in violation of the Age Discrimination in Employment Act ("ADEA"), which forbids an employer from treating an employee unfavorably "because of such individual's age." , 526 F.3d at 358. The trial judge instructed the jury to rule in favor of Gross if (1) Gross proved beyond a preponderance of the evidence that his age was "a motivating factor" in FBL's decision to demote him, and (2) FBL subsequently failed to prove beyond a preponderance of the evidence that it would have demoted Gross "regardless of his age." at 360. In other words, once Gross proved that his age was a motivating factor, the burden of proof on causation shifted to FBL to prove that Gross's age was not the determining factor. See This is known as a "mixed motive" instruction. See The jury ultimately found for Gross and awarded him $46,945 in lost compensation. See at 358.
On appeal, the Court of Appeals for the Eighth Circuit ("Eighth Circuit") held that the trial judge erred in issuing a mixed motive instruction, and reversed and remanded the case for a new trial. See , 526 F.3d at 358-60. According to the Eighth Circuit, the judge should have placed the burden of proof entirely on Gross, including the issue of causation, by requiring him to prove that his age was the determining factor behind his demotion. See at 358, 360. The Eighth Circuit based its holding on the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins ("Price Waterhouse"). See at 359-60; 490 U.S. 228 (1989). In Price Waterhouse, the Court addressed burdens of proof in cases involving Title VII, which prohibits discrimination against an individual "because of such individual's race, color, religion, sex, or national origin." at 358-60. The Court's decision was a plurality opinion in which the Eighth Circuit concluded that Justice O'Connor's opinion established the law. See Under Justice O'Connor's view, a plaintiff must present direct evidence of a discriminatory motivating factor in order to receive a mixed motive instruction and shift the burden on causation to the defendant. See If the plaintiff presents only circumstantial evidence, then the burden of proof remains entirely on the plaintiff. See Due to the similarity in language and purpose between Title VII and the ADEA, the Eighth Circuit applied Price Waterhouse to Gross's ADEA claim and found that the burden of proof should have rested entirely on Gross because he presented only circumstantial evidence. See
In applying Price Waterhouse, the Eighth Circuit rejected Gross's contention that the case no longer applied. See , 526 F.3d at 360-61. Gross had argued that subsequent amendments to Title VII and the 2003 Supreme Court decision, Desert Palace, Inc. v. Costa, supplanted Price Waterhouse in Title VII cases by finding circumstantial evidence sufficient for granting a mixed motive instruction. See Gross unsuccessfully contended that ADEA claims should be treated similarly. See
Gross submitted a petition for certiorari to the Supreme Court of the United States, which granted certiorari on December 5, 2008 to determine when a mixed motive instruction is warranted in ADEA cases. See
Analysis
Laying out the Applicable Frameworks
In this case, the U.S. Supreme Court may determine whether a plaintiff needs to present direct evidence of discrimination to obtain a mixed motive instruction in a case that does not arise under Title VII of the Civil Rights Act. In McDonnell Douglas Corp. v. Green ("McDonnell Douglas"), the Supreme Court laid out a burden-shifting framework for evaluating discrimination suits. The McDonnell Douglas framework requires the plaintiff to make out a prima facie case of discrimination. Once the plaintiff makes out a prima facie case, the plaintiff establishes a rebuttable presumption that a discriminatory violation took place. The employer then has the burden of providing a non-discriminatory reason for its action. If the employer presents such a reason, the plaintiff's presumption disappears and the court simply determines whether the employer's action was discriminatory.
In a later case, Price Waterhouse v. Hopkins ("Price Waterhouse"), the Supreme Court addressed the evidentiary requirements for shifting the burden of persuasion for Title VII cases under the McDonnell Douglas framework. Price Waterhouse was a plurality opinion without a definitive controlling decision. The Eighth Circuit determined that Justice O'Connor's concurrence laid out the applicable framework. Justice O'Connor's concurrence explains that to make out a prima facie case and receive a rebuttable presumption, a plaintiff must show "direct evidence" that a discriminatory factor played a substantial role in the employer's decision. If the plaintiff makes out a prima facie case, the burden of proof shifts to the employer to show that it more likely than not would have reached the same decision without considering the discriminatory factor. A plaintiff who fails to make a prima facie case retains the entire burden of proof.
After the Supreme Court's decision in Price Waterhouse, Congress passed the Civil Rights Act of 1991, which amended Title VII. These amendments included 42 U.S.C. § 2000e-2(m), which states that an unlawful employment practice is established when the plaintiff demonstrates that one of five factors, not including age, was a motivating factor for the employer's action. Because of similarities in language between Title VII and the Age Discrimination in Employment Act ("ADEA"), courts have often applied the Title VII analysis in McDonnell Douglas and Price Waterhouse to ADEA claims. Finally, the Court held in Desert Palace, Inc. v. Costa that the Price Waterhouse framework does not apply to claims arising under § 2000e-2(m).
The Role of Price Waterhouse and Rules of Civil Litigation
Petitioner Jack Gross argues that courts should not interpret the ADEA to impose a direct evidence standard without explicit statutory direction from Congress. Gross relies on the Supreme Court's decisions in Price Waterhouse, Desert Palace, and Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), to support his argument that where a statute's text does not specifically impose an elevated evidentiary standard on a civil litigant, the courts will not impose such a standard. Gross points to the Supreme Court's statement that the "[c]onventional rules of civil litigation generally apply in Title VII cases." Gross argues that, under conventional rules of civil litigation, plaintiffs can use both circumstantial and direct evidence to prove their case, and that proving a discriminatory purpose does not require direct evidence. In addition, Gross argues that Congress, not the courts, should decide both the circumstances under which to alter conventional civil litigation evidence standards, and what those altered standards should be. Because Congress did explicitly include an elevated evidentiary standard of direct evidence in the ADEA (and Title VII), Gross contends that Congress intended the conventional rules of civil litigation to apply.
FBL Financial Services, Inc. ("FBL") counters that the Supreme Court should overrule Price Waterhouse as applied to the ADEA and place the burden on the plaintiff-the employee making the discrimination claim-at all times. FBL maintains that the plain language and legislative history of the ADEA, as well as related Supreme Court decisions, support its contention that an employee must prove the employer took an adverse action "because of" an employee's age. FBL explains that although the ADEA contains no express elevated evidentiary standard, it also contains no language shifting the burden of persuasion about causation to the employer. FBL then points to Schaffer v. Weast, 546 U.S. 29, 56 (2005), Desert Palace, and Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395, 2406 (2008), to support its argument that under the conventional rules of civil litigation, unless otherwise specified, the plaintiff bears the burden of persuasion. FBL contends that since Congress included no language in the ADEA explicitly addressing the burden of persuasion, the conventional rules of civil litigation should apply. Under the conventional rules, FBL maintains, the burden of persuasion rests entirely on the plaintiff.
In addition, FBL points to factors that the Supreme Court usually considers when determining whether to overrule precedent and argues that those factors strongly encourage overruling Price Waterhouse. First, FBL argues that the decision in Price Waterhouse is unsupported by the text of the ADEA and runs contrary to the conventional rules of civil litigation. Second, FBL argues that overruling Price Waterhouse would clarify how to apply the ADEA because Price Waterhouse was a "splintered" decision that proved hard to interpret and apply. Third, FBL argues that Price Waterhouse poses problems in jury trials because courts often wait until the "eleventh hour" to decide whether to instruct the jury to apply a single motive or mixed motive framework. Fourth, FBL argues that Price Waterhouse has no functional purpose because the employee must offer the evidence to establish a prima facie case and satisfy the burden of persuasion in both single and mixed motive cases. Fifth, FBL argues that Congress "abandoned Price Waterhouse in the very context in which it first arose" by including § 2000e-2(m), which FBL maintains "returned the burden of persuasion to the employee on all elements of Title VII claims," in the Civil Rights Act of 1991. Finally, FBL argues that the Supreme Court did not apply Price Waterhouse to a recent ADEA case, and instead applied the framework established in McDonnell Douglas.
Although Gross does not maintain that the Supreme Court should overrule Price Waterhouse, he does argue that Price Waterhouse does not require direct evidence to determine whether the plaintiff or defendant has the burden of proof in Title VII cases. Gross asserts that the Court of Appeals for the Eighth Circuit wrongly concluded that Justice O'Connor's concurring opinion in Price Waterhouse, which contained a direct evidence requirement, controlled. Instead, Gross contends that five justices in Price Waterhouse "agreed on a standard that conspicuously did not include any requirement that direct evidence is needed to show that an impermissible consideration was a motivating factor." In addition, Gross maintains that courts should not analyze direct evidence and circumstantial evidence of discrimination under separate frameworks, and that the Eighth Circuit erred in interpreting McDonnell Douglas and Price Waterhouse to support such an assessment.
The Relevance of Desert Palace
FBL argues that if the Supreme Court does not overrule Price Waterhouse by placing the burden entirely on the plaintiff, then it should apply Price Waterhouse in this case by requiring Gross to present direct, and not just circumstantial, evidence to shift the burden of persuasion to FBL. According to FBL, the Court's decision in Desert Palace-which held that the Price Waterhouse framework does not apply to claims arising under § 2000e-2(m)-does not affect claims brought under the ADEA. FBL points out that the Civil Rights Act of 1991 contains no language applying § 2000e-2(m) to the ADEA. FBL contends that when Congress chose to modify the ADEA through the Civil Rights Act of 1991, it did so explicitly. For instance, the 1991 Act clearly amended the limitations period of the ADEA. In addition, FBL maintains that the legislative history of the 1991 Act shows that Congress considered the effect of the amendments on the ADEA; when a large effect was seen, Congress either explicitly stated that the amendments applied to the ADEA or amended the ADEA directly. FBL therefore argues that §2000e-2(m) does not apply to claims brought under the ADEA, and concludes that the Price Waterhouse analysis still controls.
Gross responds that while the language of the Civil Rights Act of 1991 strongly influenced the holding in Desert Palace, the underlying logic of Desert Palace extends beyond the Civil Rights Act of 1991. Gross construes Desert Palace as enunciating and reinforcing the conventional rules of civil litigation. According to Gross, the conventional rules of civil litigation generally accept circumstantial evidence as proof of an improper discriminatory motivation. Therefore, rather than arguing that the holding in Desert Palace expressly controls claims brought under the ADEA, Gross contends that the underlying logic of the case should carry over and control.
Discussion
When an employee claims that his employer violated the Age Discrimination in Employment Act ("ADEA") by treating him adversely due to his age, what does he have to prove to prevail? Petitioner Jack Gross argues that the employee must prove through either direct or circumstantial evidence that his age motivated his employer's conduct. Once the employee does so, he will prevail unless the employer proves that he would have acted similarly regardless of the employee's age. Respondent FBL Financial Services, Inc. ("FBL"), on the other hand, argues that the Supreme Court should overrule its decision in Price Waterhouse v. Hopkins ("Price Waterhouse") and always require employees to bear the burden on causation in ADEA cases. Alternately, FBL argues that the Supreme Court's decision in Price Waterhouse places the burden of proof on the employer only if the employee presents direct (not circumstantial) evidence proving that age motivated the employer's conduct.
Regardless of the Supreme Court's holding, its decision may significantly impactaffect ADEA cases. The allocation of the burden of proof is often "outcome determinative" in that it sways the case's result in favor of the party not carrying the burden, and the party with the burden on causation in ADEA cases will therefore be more likely to lose. This could be particularly significant in the current economic recession when many workers are being laid off, because the layoffs can lead to litigation involving ADEA claims. As a result, the Court's decision in this case could help employers and employees determine how likely they are to prevail in such cases.
One amicus supporting FBL, the National School Boards Association ("NSBA"), argues that a decision favoring Gross would be detrimental for public schools nationwide. The NSBA explains that public schools often choose to hire recently trained teachers because they are equipped with new skills beneficial for students. In addition, schools will frequently hire lower-paid teachers to deal with budget cuts. Though both of these factors tend to favor younger employees, the schools can rely on these reasons for hiring younger employees because they are non-discriminatory. The NSBA argues that a decision permitting employees to present circumstantial evidence to shift the burden will make schools "more vulnerable to unfounded discrimination claims challenging decisions not motivated by discrimination." According to the NSBA, "[s]hifting the burden to favor plaintiffs in these cases will force school boards to choose between taking actions to promote student achievement and actions to avoid employment litigation."
In support of Gross, however, the Lawyers' Committee for Civil Rights Under Law, et al. ("Lawyers Committee") counters that a decision favoring FBL will create an "impracticable and unworkable" rule. FBL advocates placing the burden of proof on employees in ADEA claims either at all times or when they present circumstantial, but not direct, evidence. In Title VII cases, however, the burden shifts to employers once the employees present either direct or circumstantial evidence. Therefore, a ruling in favor of FBL will require courts to distinguish between ADEA and Title VII claims for purposes of burden of proof. The two claims often arise together, however, where employees claim that their employers discriminated against them on the basis of age and another illegitimate factor, such as race or religion. The Lawyers' Committee argues that requiring courts to differentiate between the two will only complicate matters when these claims arise together.
Furthermore, the Lawyers' Committee argues that a decision in Gross's favor will prevent courts from having to distinguish between direct and circumstantial evidence, because the burden will shift to the employer once the employee presents either type of evidence. Other circuit courts of appeal have already noted the difficulty in distinguishing between direct and circumstantial evidence. Therefore, the Lawyers' Committee argues, a ruling in Gross's favor will conserve judicial resources and provide courts with a more practical and effective rule.
The Courts of Appeals for the First, Fifth, Seventh, Ninth, and Tenth Circuits have held that direct evidence of discrimination is not necessary to shift the burden to the employer. The Second, Third, and Eighth Circuits, on the other hand, do require direct evidence to shift the burden. Therefore, the Supreme Court's decision in this case will address this split among the circuits.
Conclusion
The decision in this case may determine what effect previous Supreme Court decisions like McDonnell Douglas Corp v. Green, Price Waterhouse v. Hopkins, and Desert Palace, Inc. v. Costa may have on claims brought under the Age Discrimination in Employment Act ("ADEA") in light of § 2000e-2(m) of the Civil Rights Act of 1991. Petitioner Jack Gross argues that interpreting the ADEA to require direct evidence of discrimination is contrary to conventional rules of civil litigation, which do not impose elevated evidentiary standards without specific statutory instruction. FBL Financial Services, on the other hand, argues that the conventional rules of civil litigation place the burden of persuasion on the plaintiff alleging discrimination at all times unless the statute, unlike the ADEA, indicates otherwise.