Gross V. Fbl Financial Services, Inc.: Supreme Court Radically Changes the Ground Rules for Proving Adea Claims
Bible, Jon D., Sanders, Donald, Labor Law Journal
In June, 2009, the United States Supreme Court issued a controversial 5-4 decision involving the Age Discrimination in Employment Act of 1967 [ADEA],2 which prohibits an employer from taking an adverse employment action against an employee "because of such individual's age."3 Gross v. FLB Financial Services, Inc.4 was a mixed-motives disparate treatment case, in which both discriminatory and legitimate factors allegedly accounted for FBL's decision to demote a 54-year-old employee.5 Speaking for the five conservative Justices,6 Justice Clarence Thomas rejected the argument that the analytical formula that applies in mixed-motives cases brought under Title VII of the 1964 Civil Rights Act7 also applies in ADEA cases. Under that formula, if the plaintiff proves that discrimination was a motivating factor in an adverse action, the burden shifts to the employer to prove that it would have made the same decision absent that factor. In Gross, Thomas held that the burden of proof stays with ADEA plaintiffs throughout the litigation. He further held that a plaintiff can prevail only if he proves that his age was not just a motivating factor, but ¿Ae reason - the "but-for" cause, as Thomas termed it - behind the adverse action he suffered. As we shall discuss, although it is not clear what Thomas had in mind in articulating this standard, there can be little doubt that after Gross, ADEA plaintiffs will find it more difficult to win - which, we submit, is exactly the result that the majority desired.
Jack Gross worked for the FBL Financial Group, Inc. [FBL] for many years, eventually attaining the position of Claims Administration Vice President. In 2003, in an internal reorganization, he became Claims Project Coordinator and many of his duties were shifted to a new position that was given to a woman in her early forties. While both received the same pay, Gross saw this as a demotion, arguing that the woman's position was the functional equivalent of his former position and that his new role was ill-defined and lacked a job description or specific duties. In April, 2004, Gross sued FBL under the ADEA, contesting the 2003 "demotion."8
In the district court, Gross argued that his age accounted for this job action. FBL countered that the action was part of a legitimate corporate restructuring and that Gross's new position was better suited to his skills. At the close of trial, the court instructed the jury that Gross had the burden to prove, by a preponderance of the evidence, that FBL demoted him to Claims Project Coordinator in 2003 and that his age was a motivating factor in that decision, but that its verdict should be for FBL if FBL proved, by a preponderance of the evidence, that it would have demoted Gross regardless of his age. The jury returned a verdict for Gross, awarding him $46,945 in lost compensation.9
FBL challenged the latter instruction on ap- peal, with the United States Court of Appeals for the Eighth Circuit concluding that under the 1989 Supreme Court decision in Price Wa- terhouse v. Hopkins,10 the burden of proof shifts to the employer only if the plaintiff presents direct evidence that an illegitimate criterion was a substantial factor in the employment decision.11 The jury instruction was flawed because it al- lowed this burden to shift to FBL on a showing of any such evidence. Accordingly, the appeals court vacated the decision and remanded the case for a new trial.12
The Supreme Court granted certiorari to decide whether a plaintiff must present direct evidence of age discrimination to obtain a mixed-motives jury instruction. When he confronted the merits of the case, however, Thomas decided that the threshold question was whether the burden of proof ever shifts to the employer in an ADEA case. Because it does not, he found, the directevidence question that the Court took the case to decide was effectively moot.13