Monday, December 28, 2009

McDonnell Douglas Lives on in ADEA Cases Post-Gross

A Third Circuit decision released last week (Smith v. City of Allentown) applied the McDonnell Douglas burden shifting framework to an ADEA claim. A few months ago this would not have been news. Now it garners attention (from among others Workplace Prof Blog and now, Lawffice Space).

Why the sudden interest? Simple. Gross v. FBL. In a previous entry, I explained that the Supreme Court's Gross decision nixed the Price Waterhouse burden (of persuasion) shifting framework in ADEA mixed motive cases. The Supreme Court also dropped a footnote, however, stating that:
"the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), utilized in Title VII cases is appropriate in the ADEA context."
This led to fears that McDonnell Douglas (a burden of production shifting framework utilized in circumstantial evidence discrimination cases) was dead in ADEA cases. I dropped a comment on the entry linked in the previous sentence describing what I saw as a distinction between shifting the burden of persuasion (done away with in ADEA cases) and shifting the burden of production (which I thought, and still think, remains the recognized framework post-Gross).

The Third Circuit recognized this distinction in Smith:
"Appellees argue that Gross renders McDonnell Douglas’s burden-shifting inapplicable to ADEA cases and that we should dispose of the instant appeal solely by inquiring whether Smith would have retained his job but for the alleged age discrimination. However, we may not depart from our prior decisions applying McDonnell Douglas to age discrimination cases unless those decisions are irreconcilable with Gross.
. . . .
Gross stands for the proposition that it is improper to shift the burden of persuasion to the defendant in an age discrimination case. McDonnell Douglas, however, imposes no shift in that particular burden.
. . . .
Hence, Gross, which prohibits shifting the burden of persuasion to an ADEA defendant, does not forbid our adherence to precedent applying McDonnell Douglas to age discrimination claims."
The Second and Sixth Circuits agree that McDonnell Douglas still applies in the world of ADEA. How other Circuits will rule remains to be seen.

So, why did the Supreme Court even bother with the note? If it was an attempt to get Circuits to drop McDonnell Douglas in ADEA cases, then it has thus far proven a failure. I find the more likely explanation to be two-fold:
  1. Foreshadowing: If this issue is presented to SCOTUS in the future, the Court might hold that McDonnell Douglas does not apply in ADEA cases; and/or
  2. A note to Congress: The Gross decision was based largely on differences between the ADEA statutory language and language found in Title VII. Perhaps it's a not-so-subtle note, "Hey, if you don't like this holding, all you have to do is change the ADEA statute... and while you're at it, you might want to decide if McDonnell Douglas applies so we don't have to decide it for you."
Support for the latter may already be in the proposed Protecting Older Workers Against Discrimination Act which reads in part:
"Every method for proving either such violation, including the evidentiary framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), shall be available to the plaintiff."
Congress seems to be preemptively answering the question before the Supreme Court answers for them.

Fears of the death of McDonnell Douglas in ADEA claims were not unfounded. Gross cast a serious shadow of doubt but thus far the fears have not come to fruition. Realization of these fears is just one Supreme Court opinion away, however... unless Congress heads them off at the pass.