Did the Supreme Court Discriminate Against Victims of Age Discrimination?
The only good thing to say about the new age discrimination case of Gross v. FBL Financial Services, Inc. is that it will be gone in a flash. 
There are so many things wrong with it that it’s hard to know where to begin, and because I really do believe that it will be legislatively overruled in the very near future, I don’t want to beat it to death.
Let me say this. For those immersed in discrimination law, the opinion and the dissenting opinions are a must read.
For the rest of the country, I believe that the decision will have little impact and there are several reasons why that’s so.
Case Background
The question before the Supreme Court was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed motive instruction in a suit brought under the Age Discrimination in Employment Act.
It’s a pretty dry academic issue with little to no practical effect in the real world of age discrimination litigation.
For those interested in the background of the issues presented in the case, you can take a look at the article I wrote on the case when it was argued in March.
What The Court Did In The Gross Case
Instead of deciding the issue before it, the Court did two really strange things in this case:
- It decided an entirely different issue than the question accepted for review — one that was not properly presented or briefed.
- The issue it chose to rule on manifested a complete disregard for Supreme Court precedent and Congressional intent.
Here’s an attempt at an explanation.
Title VII of the Civil Rights Act of 1964 says that a person can’t be discriminated against in his/her employment “because of ” his/her race, color, sex, religion or national origin.
The Age Discrimination in Employment Act (“ADEA”) was passed in 1967. Like Title VII, the ADEA prohibits discrimination in employment “because of ” age.
The Supreme Court has interpreted the “because of” language and so has Congress.
The issue first came up for interpretation before the Supreme Court in the Price Waterhouse case in 1989. In that case, Justice Kennedy pushed for a “but for” standard which meant that the plaintiff in a Title VII case would have to prove that “but for” his race (sex, national origin, religion, etc.) he would not have been terminated (demoted, transferred, etc.).
The Price Waterhouse decision rejected the “but for” standard and held that the plaintiff in a Title VII employment discrimination case bears the burden of proving that membership in the protected class was a “motivating factor in the employment decision” in order to prove that he or she was discriminated against because of it.
Congress ratified the “motivating factor” interpretation when it passed the Civil Rights Act of 1991.The precise language of the statute is as follows:
An unlawful employment practice is established when the complaining party demonstrates that race, color religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
What happened in the Gross case last week is that the majority resurrected the“but for” standard and held that:
To establish a disparate treatment claim under the plain language of the ADEA, the plaintiff must prove that age was the “but-for”cause of the employer’s adverse decision.
It’s important to point out that Title VII and the ADEA have previously been interpreted uniformly by courts throughout this country including the Supreme Court.
After all discrimination is discrimination, and it make no sense to use different methods, burdens, or standards of proof for age discrimination cases than sex or race discrimination cases, and it’s not been done before.
Why The Decision Makes No Sense
For all of the reasons why the majority opinion written by Justice Thomas (joined by guess who) is in my opinion, just plainly wrong (there are other words I would love to use but I am constrained to be respectful) I recommend that you take a look at Justice Stevens scathing dissent. Here’s a glimmer:
The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. It’s failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.
Unfortunately, the majority’s inattention to prudential Court practices is matched by its utter disregard our our precedent and the Congress’ intent.
Not only did the Court reject the but-for standard in [Price Waterhouse], but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.
The Court’s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law.
I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking.
(Justice Souter agreed with Justice Stevens and also wrote a separate dissent. He raised additional problems with the “but for” language — not the least of which is that it’s a tort concept of causation that has no place in the actual context of a discrimination case and its proof.)
What’s Coming
The talk has already started about a Congressional bill which will overturn the decision. As reported in the Washington Times on Friday:
Democratic lawmakers seized on Justice Stevens’ dissent as constitutional lawyers predicted Congress would make a law to lower the courts new bar for age discrimination cases. 
‘It is even more troubling that these five justices decided to go further than the question presented to the court,’ said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat.
“This overreaching by a narrow majority of the court will have a detrimental effect on all Americans and their families. In these difficult economic times, American workers need to be protected from discrimination.”
Mr. Leahy said Thursday’s decision reminded him of the court’s “wrong-headed ruling in Ledbetter,” a reference to Lily Ledbetter, whose pursuit of equal pay to her male counterparts at Goodyear Tire & Rubber Co. was thrown out in 2007 because she filed the lawsuit after the expiry of a 180-day statute of limitations.
What’s the Practical Effect of the Decision?
- As far as the loss of getting a mixed motive instruction in an age discrimination case, most plaintiff’s lawyers don’t care. It’s too confusing to the jury. So until it’s fixed legislatively, it really doesn’t matter.
- Most experienced employment lawyers know that the “but for” language will have little effect on a jury.
- Age discrimination plaintiffs will still have the opportunity, through the use of direct and circumstantial evidence, to prove that they were discriminated against because of their age — and this decision does not change that fact.
While some interpret the decision to require proof that age was the sole reason for the discharge, I don’t think that’s clear at all from the language of the decision.
The majority opinion relies on a previous Supreme Court case, Hazen Paper Co. v. Biggens, and the language in it that says that “an age discrimination plaintiff can win if it proves that the discrimination played a (not the) role in the employer’s decision making process and had a (not the) determinative influence on the outcome.”
Plaintiffs in age discrimination cases can and will rely on that language to rebut the contention that a higher bar has been set. Justice Thomas also writes in a footnote that the decision sets no “heightened evidentiary requirement for ADEA plaintiffs ” — so why not take him at his word.
In sum, I think it’s all academic and that the opinion will have little effect on the litigation or trial of age discrimination cases in the future. It will, however, make for a whole pile of briefing on what will shortly become a moot point.
The Bottom Line
The bottom line is that Congress has certainly never said that it should be harder to prove age discrimination than any other kind of prohibited discrimination and never intended that result.
It’s fundamentally unsound and intellectually dishonest to interpret the same words differently because one discrimination statute refers to race and sex and another refers to age. What’s more, it’s just totally confusing.
That’s why the Gross decision will, in my opinion, be gone in a flash.
About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.
This article originally appeared in Employee Rights Post on June 22, 2009. Re-printed with permission by the author.
Images: www.roadtransport.com and farm1.static.flickr.com
Hearings Held On Federal Discrimination Bill To Overturn Gross Decision
On May 5 and 6, House and Senate committees held back-to-back hearings on legislation to override a June 2009 Supreme Court decision that stripped older workers of vital protections against bias on which they had relied for over 40 years. In this ruling, which Justice Stevens in dissent characterized as “unabashed judicial law-making,” “irresponsible,” and in “utter disregard” of the Court’s own precedents and “Congressional intent,” a narrow 5-4 majority so weakened the 1967 Age Discrimination in Employment Act (ADEA), that employers are left with little incentive to comply. The case, .jpg)
According to Senator Tom Harkin, one of the co-sponsors of the bill — as reported in 
