Gross Point Blank - Supreme Court Nixes ADEA Mixed Motive

In some respects, the Supreme Court's Thursday morning holding in Gross v. FBL Financial Services, Inc. is rather unremarkable: An Age Discrimination in Employment Act (ADEA) plaintiff must establish that age discrimination was the 'but for' cause of an adverse employment action. After all, the text of the ADEA makes it unlawful for employers to take an adverse action against an employee "because of such individual's age." (emphasis added).

Given the express language, it hardly seems surprising the Court held that an ADEA plaintiff must establish that age discrimination was the 'but for' cause of the adverse employment action. That's pretty much the lowest level of causation (compared to say sole cause, primary cause, or proximate cause). Is it shocking to learn that "because" necessitates some showing of cause?

Gross, however, came as quite a shock for two reasons:

1. As the majority opinion concedes, the question answered in its holding was not the question presented by the parties; and
2. This is a radical departure from Supreme Court Title VII precedent (Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). Price Waterhouse held that the burden of persuasion may shift to the employer-defendant in "mixed motive" cases (where an adverse action was taken for both permissible and impermissible reasons). If the employee can show that an impermissible reason was a "motivating factor" for the adverse action then the employer must show that it "would have taken the same action regardless of that impermissible consideration."

Generally, the Supreme Court does not answer questions which it is not asked. Likewise, the Supreme Court (and really all courts) have generally treated discrimination under the various anti-discrimination statutes (Title VII, ADA, and the ADEA being the big ones) more-or-less the same.

Employers will no doubt see Gross as a victory as it saves them from difficult to defend mixed motive ADEA cases by keeping the burden on the plaintiff. The question is, will Congress see this as an invitation to intervene? Other recent "pro-employer" Supreme Court decisions have led to a broader ADA under the Amendments Act of 2008 (or ADAAA) and the statute-of-limitations-extending Ledbetter Act signed earlier this year.

ADEA claims were up 29% in FY 2008. The baby boomers are approaching retirement age and the economy is leading employers to make tough decisions. With that backdrop, and given the current political climate, Congressional action may be just around the corner.

See also - Ross Runkel: Gross will be "the biggest employment law case of 2009" and sharing my view that Congressional action is likely (actually he writes it's "certain").