Thursday, June 18, 2009

Adieu ADEA - Supreme Court's 'but for' requirement will all but kill many age bias claims.

The United State Congress in passing Title VII of the Civil Rights Act (finally) acknowledged that the effects of employment discrimination can be subtle, long-lasting, and devastating, and that legislative action was appropriate to level the playing field.

The framework for analyzing employment discrimination claims has long been established by the case of McDonnell-Douglas v. Green which created a burden-shifting analysis to facilitate the handling of claims by the fact-finders, whether judges or juries. That framework creates a 'tennis match-like' approach to claims.

The employee gets first serve, and must prove a prima facie case, that is, he or she is in a protected classification (i.e. race, sex, national origin, etc.), that he or she suffered an adverse employment action (i.e. fired, demoted, not premoted, etc.) and that others not in that protected classification were not so treated (although some cases have held that this last requirement is not part of the prima facie case.) The burden for stating a prima facie case is supposed to be low so as to facilitate enabling the employee to proceed.

Once the employee states the prima facie case, the ball is effectively 'in the court' and the employer gets to return it by proving that there was a 'legitimate non-discriminatory reason' for the action taken against the employee. Once the employer hits the ball back, the burden shifts back to the employee to show that the stated reason was not the real reason, and that the primary motivating factor was discriminatory. The employee gets to hit it back one more time with a forehand shot (i.e. direct evidence of discrimination, which is very rare, such as a supervisor calling the employee 'boy' in Ash v. Tyson Foods), or a backhand (i.e. circumstantial evidence that the employer's stated reason is pretext, that is evidence subjecting the employer's rationale to unbelievability as in Reeves v. Sanderson Plumbing.)

If the employee hits the ball back, and the jury believes the employee, the employer generally loses. That's what happened in an age discrimination case in which an employee proved to a jury that his demotion and the sidelining of his career after many years with an employer was motivated in significant part by his age. The employee won a significant verdict which was ultimately appealed and to which the U.S. Supreme Court granted review.

But now all that's changed for age discrimination cases. The Supreme Court today in Gross v. Financial Services said that the Age Discrimination in Employment Act ("ADEA") claims were never meant to be subject to the McDonnell-Douglas analysis, and that the only way employees can prove discrimination is through proof that "but for the age of the employee, the adverse employment action would not have been taken." Basically, the employee gets one shot to prove that age was the determining, 'but for' factor in the action taken against them. Prove that you win, otherwise you lose.

This is massively wrongheaded and ignores decades of age discrimination jurisprudence. It renders 'mixed motive age discrimination cases' dead on arrival. It screams out for immediate Congressional action to patch up the ADEA so that it really protects older employees, the way Congress patched the Americans with Disabilities Act ("ADA") recently to really protect the disabled, and Title VII to really protect against gender-based discrimination in pay. However, and almost as importantly, the case stands as a monument to the proposition that activist judges don't always sit on the left side of the court.

As Justice Stevens, a Nixon appointee, by the way, said in his dissent in Gross:
I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. (Emphasis added.)
As the debate over Judge Sotomayor gets underway, let us keep in mind that who is the activist judge is largely a function of whose ox is being gored.

And for those employers getting ready to discharge workers who are over the age of 40, fire at will. In this economy, your 'mixed motive' defense to a charge of discrimination is going to be virtually bullet-proof until Congress does act.

P.S. One fellow employment lawyer for whom I have a great deal of respect suggests that my sentiments regarding McDonnell Douglas are misplaced. I have now reread the opinion at least twice. I must respectfully disagree with him. The majority in Gross specifically states "This Court has never held that this burden-shifting framework applies to ADA claims. And, we decline to do so now." This is reiterated in the second footnote of the opinion. That statement, coupled with the court's completely unnecessary holding that the ADEA does not authorize a mixed-motive age discrimination claim, leaves me feeling even more grim about the decision than I did when I first wrote this post.

P.P.S. Within 24 hours of the decision Senator Leahy, Chairman of the Senate Judiciary Committee decried the decision, and both the AARP and the National Employment Lawyers Association have announced initiatives to seek Congressional action overruling the decision. Once again, students of law and politics should be able to watch how our system of government works in updating the law.


  1. As I understand it, the Gross decision assessed whether a mixed-motive case brought under the ADEA uses the Price Waterhouse framework. This framework entails shifting the burden of PERSUASION. The Court held that this framework is never used in an ADEA case.

    Your complaint seems to be that the Court has done away with the McDonnell Douglas-Burdine burden shifting framework. That framework deals with shifting the burden of PRODUCTION. The burden of persuasion remains with the plaintiff under this framework. I do not believe this issue is addressed at all in Gross.

  2. I disagree, the majority states in footnote 2 that it never has ruled on whether the McDonnell Douglas burden shifting analysis is appropriate for age bias claims.