Tuesday, June 23, 2009

Journalists Create "Key Factor" Standard in Gross

Over the weekend I posted analysis of the Supreme Court's latest ADEA decision, Gross v. FBL Financial Services, Inc. Not surprisingly, some publications reacted to the opinion and were quite critical. But are they just making up the holding?

The Denver Post published an editorial, Unjust ruling on age-related suits. The paper states the holding as:
"The decision, which came on a 5-4 vote, means workers have to prove their age was the key reason for the employment decision in question...."
Later in the same piece the holding is:
"The majority held workers must show age was the key factor."
First, when using "the key factor" test, what's the difference between emphasizing the "key" and emphasizing the "the"? Is there a difference between "key factor" and "key reason"? And more importantly, where is this standard coming from?

Writing for the majority, Justice Thomas never uses the phrase "the key reason" (regardless of which word you emphasize). In fact, the word "key" does not appear anywhere. It's not too hard to find the holding... in the last paragraph Thomas states:
"We hold that a plaintiff... must prove... that age was the 'but-for' cause of the challenged adverse employment action."
And there we have the magic words, "but-for." They appear seven times in the majority opinion, yet the Denver Post saw fit to use them zero times.

Is this just a gripe about word choice? First, "but for" is a well-established legal standard so the magic words are important in that respect. Second, and more importantly, I'd argue there's an actual difference.

Let's say hypothetical company, XYZ Inc., decides it needs to fire one of its 10,000 sales associates. Management decides to use sales statistics to make the decision and pulls the personnel files for the two worst sales associates. The worst is Alfred who is 24. The second-worst is Barney who is 68. Management hates old people and decides to fire Barney instead of Alfred (even though Barney has better stats than Alfred).

Barney's poor sales record differentiated him from 9,998 other sales associates. His age only differentiated him from one, namely Alfred. Now you tell me, what's the key factor (or the key reason) Barney got fired? The word "the" implies you can only pick one, right? It must be his sales record. Barney, however, would not have been fired "but for" his age.

Can the same test yield different results? Nope. Therefore, I must conclude that "the key factor" standard was not the test put forth by Thomas in Gross. I know the law can be complicated, but I'm pretty confident the American public is capable of understanding the plain English meaning of "but for."