Academic journal article The University of Memphis Law Review

Gross V. FBL Financial Services-Oh So Gross!*

Academic journal article The University of Memphis Law Review

Gross V. FBL Financial Services-Oh So Gross!*

Article excerpt

In Gross v. FBL Financial Services, Inc.,1 a five-member majority of the Supreme Court imposed a heightened burden of proof upon victims of age discrimination under the Age Discrimination in Employment Act ("ADEA"). In an opinion characterized by the dissent as "an unabashed display of judicial lawmaking,"2 the majority appears to disregard congressional intent and to ignore decades of precedent. This decision has immediately impacted older workers, relegating them to second-class status among victims of discrimination, and has already been used to erode protections seemingly established under other antidiscrimination laws. The Gross majority made it explicit that it is up to Congress to clarify its intent in extremely precise terms when it amends employment discrimination statutes.

I. Gross v. FBL Financial Services

Gross v. FBL Financial Services involved a claim that FBL engaged in ADEA-prohibited age discrimination. In the district court, a jury found that Mr. Gross's age was a motivating factor in FBL' s decision to demote him.3 The district court instructed the jury to enter a verdict for Gross if he proved by a preponderance of the evidence that he was demoted and that his age was a motivating factor in the demotion.4 The district court also explained to the jury that age was a motivating factor if it played a part in the demotion and instructed the jury to return a verdict for FBL if it proved that it would have demoted Gross regardless of age.5

On appeal, the Eighth Circuit reversed and remanded, holding that the district court's mixed-motive jury instruction was flawed because the appropriate legal analysis was the standard established in Price Waterhouse v. Hopkins,6 which shifts the burden of persuasion to the employer only if the plaintiff presents "direct evidence" of age discrimination.7 Gross petitioned for certiorari on this narrow issue of whether direct evidence was required.8 In a surprising 5-4 decision, the Supreme Court held that a mixedmotive jury instruction is never proper under the ADEA because the ADEA's prohibition against discrimination "because of an individual's age requires plaintiffs to prove that age was the "butfor" cause of the employer's decision.9

The Supreme Court stated that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged employment action.10 According to the Court, the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in the decision." This holding ignores the issue presented to the Court, stands contrary to a long-established body of judicial precedent, and undermines congressional commitment to equality in the workplace.

A. The Gross Majority Failed to Address the Issue Before the Court

Neither the parties to Gross nor the interested amici curiae were given notice the Court would be considering whether a mixed-motive instruction was available under the ADEA.12 The issue presented and on which the Supreme Court granted certiorari was whether, under the ADEA, a plaintiff is required to present "direct evidence" of age discrimination to obtain a mixed-motive jury instruction.13 Parties on both sides proceeded with the understanding that the Price Waterhouse motivating factor type of analysis was applicable to ADEA claims until FBL filed its brief at the Supreme Court questioning the utility of Price-Waterhouse.'4 The majority, rather than determining whether a Price-Waterhousetype of mixed-motive analysis applied, determined that it must reach a much more fundamental issue - whether any type of mixed-motive analysis applies to ADEA claims.15 At oral argument, the Office of the Solicitor General pleaded with the Court not to take up an issue that was not briefed by the parties or the United States. …

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