High Court Nixes "Mixed Motive" Instructions in Age Discrimination Cases

In a substantial victory for employers, the Supreme Court held in a decision issued Thursday, June 18 that "mixed motive" jury instructions applicable to cases under Title VII may not be given in a discrimination cases brought under the Age Discrimination in Employment Act ("ADEA"). Gross v. FBL Financial Services, Inc.

In its 1989 ruling in Price Waterhouse v. Hopkins, the Supreme Court addressed the applicable standard of proof for so-called "mixed-motive" discrimination cases – i.e., cases where the plaintiff claims that an adverse employment action was motivated by both permissible factors and illegal discrimination. Ordinarily, the plaintiff in an employment discrimination case has the burden of proving that the defendant employer's actions were motivated by illegal factors such as sex, race, etc. However, in Price Waterhouse, the Court held that when a plaintiff shows that discrimination made illegal by Title VII was a "motivating factor" in the employer's decision, the employer is liable unless it can prove that it would have taken the same action regardless of the employee's race, sex, or other protected status.

Although Price Waterhouse dealt with a case under Title VII, many courts concluded that its logic also applied to "mixed motive" cases under other federal employment discrimination statutes, including the ADEA. Indeed, in Gross, the question initially presented to the Court for review assumed that Price Waterhouse's mixed-motive framework applied to the ADEA in some fashion, but asked the Court to decide what kind of evidence was needed to establish that the "mixed motive" framework should apply.

However, in its ruling, the Supreme Court sidestepped the narrow issue presented to it, focusing instead on the broader question of whether the mixed-motive framework applies to ADEA claims at all. By a five to four vote, the Court held that it does not. In an opinion by Justice Thomas, the Court observed that in 1991, after Price Waterhouse, Congress amended Title VII to specifically prohibit employment actions for which membership in a protected class was a "motivating factor." While Congress also amended the ADEA, it did not add any similar language. Rather, the ADEA prohibits discrimination "because of" age. The Court held that an adverse employment action is taken "because of" an employee's age only where the action would not have occurred but for the employee's age. This being the case, the Court held that it is not sufficient for a plaintiff to show that age was a "motivating," though not exclusive factor for a challenged employment action.

In a dissenting opinion joined by Justices Souter, Ginsberg and Breyer, Justice Stevens strongly criticized the Court's ruling, stating that "the majority's inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress's intent." He observed that the language from Title VII at issue in Price Waterhouse was the same as that the language at issue in the ADEA. Further, he argued that the 1991 amendments to Title VII did not overrule Price Waterhouse's interpretation of the plaintiff's burden of proof, but merely provided that the affirmative defense available under Price Waterhouse would limit remedies for the plaintiff (principally by cutting off back pay), rather than precluding liability.

This case is clearly a victory for employers. However, such victories may come at a steep cost, as occurred after the Court's ruling in Ledbetter v. Goodyear Tire & Rubber. In that case, the Court held that an employee could not base her Title VII pay discrimination claim on employment decisions made years before she filed her EEOC charge, even if those decisions continued to affect her pay within the applicable statute of limitations. While Ledbetter was a positive ruling for employers, it prompted Congress to pass the Lily Ledbetter Fair Pay Act, which not only reversed Ledbetter but -- due to ambiguous drafting -- arguably exposes employers to lawsuits for any employment decision that arguably has a present effect upon the employee's compensation, regardless of how long ago the decision was made or when the employee learned of it. Gross and other pro-employer decisions by the Court, such as its recent ruling in AT&T v. Hulteen, could well provoke similar reactions from lawmakers, potentially resulting in further legislation that, like the Ledbetter Act, will make it even more difficult for employers to effectively defend and resolve employment discrimination cases.