Yesterday, the Supreme Court issued what's likely to be a controversial decision in an age discrimination case. The plaintiff, Jack Gross, sued his employer, FBL Financial Services, claiming that he had been demoted because of his age. (A younger employee, whom Gross had trained, was assigned many of his former responsibilities.) A federal jury found in favor of Gross, and awarded him almost $47,000.
FBL appealed, claiming that the judge gave incorrect jury instructions. The argument boils down to who has to prove what in an age discrimination case. In other types of discrimination cases (those brought under Title VII), if the plaintiff can show that the forbidden characteristic played a role in the decision being challenged, the burden of proof shifts to the employer, which must show that it would have made the same decision regardless. These are referred to as "mixed motives" cases. The shifting burden gives the employer an affirmative defense: Even though the statute was violated because an illegal factor was considered, the employer can argue, in essence, "no harm, no foul," by showing that the bias ultimately didn't dictate the outcome.
In yesterday's decision, the Court said this framework doesn't apply to age discrimination cases. The plaintiff has the burden to prove that age was the "but-for" cause of the decision -- that is, that the decision wouldn't have been made if not for the age discrimination. The burden of proof never shifts to the employer. If mixed motives are at work (for example, biased comments by decision-makers and poor performance reviews), it's up to the plaintiff to show that bias made the difference.
Here are a couple of things I found interesting about the case:
- Role reversals. Justice Thomas, thought to be a member of the "judicial restraint" wing of the Court, wrote the majority opinion. As Justice Stephens' dissent points out, that opinion asked a question the parties hadn't asked the Court to answer. Clearly enjoying the opportunity, Stephens accuses the majority of "unnecessary lawmaking," "utter disregard of our precedent and Congress' intent," and "inattention to prudential Court practices," all charges more typically levelled against Stephens and his fellow dissenters.
- Congressional intent. The mixed motive framework that applies to Title VII cases was ratified by Congress in the 1991 Civil Rights Act. The crucial bit of language in the ADEA that the Court analyzed in this case is identical to language in Title VII. Stephens argued that this means Congress expects the Court to apply the mixed motive burdens in ADEA cases; Thomas argued that if Congress wanted that, it should have said so explicitly. I have a feeling Stephens will be proven right here; Congress hasn't been shy about overturning the Court on employment issues (see the Lilly Ledbetter Fair Pay Act, for example).