Seeking a Practical Age Discrimination Standard

In Gross v. FBL Financial Services, Inc., being argued Tuesday, March 31, the Supreme Court will address how to analyze mixed-motive claims under the Age Discrimination in Employment Act (ADEA). Nothing less than meaningful access for employment discrimination plaintiffs to relief under Title VII of the Civil Rights Act of 1991 (CRA of 1991) is at stake.


To understand the importance of the Gross case to employment discrimination law, it is necessary to understand a fundamental distinction that has arisen in so-called individual disparate treatment cases, where a worker claims to have suffered an adverse employment action based on a protected characteristic under an employment discrimination statute. Initially, most of these cases were handled under the McDonnell Douglas pretext framework, which requires an employee to establish that the employer’s putative legitimate, nondiscriminatory reasons for its employment actions are pretextual and the real reason for the action was unlawful discrimination.

In 1989, the Supreme Court developed another model for proving disparate treatment discrimination in Price Waterhouse v. Hopkins. There, a woman denied promotion to partner in an accounting firm was able to show both legitimate and illegitimate motives for the employment action. Although a plurality of the Court decided that the plaintiff could make out a case by showing the illegitimate reasons for not promoting her were the “motivating reason,” a significant concurrence by Justice O’Connor set up that the illegitimate reason had to be a substantial part of the employer’s motivation and direct evidence was required to show that motivation. Many courts thereafter followed Justice O’Connor’s formulation.

Two years later, Congress enacted the CRA of 1991, requiring only that the illegitimate reason had to be motivating. Unfortunately, Congress did not make clear its intentions about what framework should govern age discrimination claims under the ADEA.

The issue thus plaguing the courts since 1991 is whether ADEA cases should continue to use the older Title VII mixed-motive analysis under Hopkins (which requires a higher showing of the illegitimate reason being substantial and direct evidence of the adverse motivation) or the lower standard under the CRA of 1991 (require mere motivating and now, after Desert Palace, Inc. v. Costa, allowing for both direct and circumstantial evidence of the motivation).

Gross: What’s at Stake

Although many believe that mixed motive cases generally favor plaintiffs more in litigation than pretext cases, it also appears that plaintiffs do much better (and get courts to give the necessary mixed-motive jury instruction) in cases where the CRA of 1991 is applicable. There is also the thought that mixed motive theory more closely reflects what happens with employment decisions in real life -– the analysis allows for the decisionmaker to consider that the employer usually offers a range or layer of reasons –- some legitimate, some illegitimate –- when it is carrying out an adverse employment action, and it is the decisionmaker’s job to try to figure out whether the illegitimate reason motivated the employer.

Gross is a hard case to predict because there are at least two or three strong arguments cutting in different directions. One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims.

A better approach, however, is to point out that disparate treatment claims under the ADEA have been interpreted, on a procedural and substantive level, as substantially identical to claims brought under Title VII. Congress thought unnecessary to state what might have seem obvious to many; this new mixed-motive standard favoring plaintiffs applies to all employment discrimination statutes and there was no need to single the ADEA out. Public policy then provides added ammunition as it makes little sense to have different standards for similar employment discrimination cases, only diverging in the type of discrimination involved. It is confusing to employers and employees alike, and uniform standards in this regard will help the parties fashion their future conduct in this area.

Although the Supreme Court has not specifically addressed this question of the appropriate mixed-motive standard in ADEA cases, the Court has decided a number of ADEA cases in recent years which might provide some important clues. In short, relevant precedents may be read narrowly by the Court to apply to only the “reasonable factors other than age” defense and disparate impact claims, and those parts of the ADEA that have been treated as substantially similar to Title VII should not be impacted by these previous decisions.

Thus, because individual disparate treatment cases are substantially similar under Title VII and the ADEA, the Supreme Court in Gross should find that the CRA of 1991 standard applies to mixed-motive cases under the ADEA as well. This result is consistent with using other sources of authority when the relevant statutory language in the CRA of 1991 is ambiguous and provides a much more predictable and uniform playing field for parties to employment discrimination litigation in the future (who have enough interpretative difficulty without these mixed-motive matters being added to the mix, so to speak).

Cross posted on ACS Blog and Workplace Prof Blog.

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