On June 18, the Supreme Court decided Gross v. FBL Financial Services, Inc., No. 08-441.
At the age of 54, Jack Gross was reassigned by his employer to a different job, with many of his former responsibilities being assigned to a person in her 40s whom he had previously supervised. Although Gross continued to receive the same pay and benefits as before his reassignment, he regarded this action as a demotion, and he sued alleging that the reassignment violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. At trial, the district court instructed the jury that it should return a verdict for Gross if it found that age had been "a motivating factor" in his demotion, i.e., if age "played a part or a role in" the decision to demote him. It also instructed that the jury should find for the employer if it had been proved by a preponderance of the evidence that the demotion would have occurred regardless of Gross's age. The jury returned a verdict for Gross. The U.S. Court of Appeals for the Eighth Circuit reversed and ordered a new trial, holding that the district court had incorrectly instructed the jury according to the burden-shifting analysis in cases under Title VII of the Civil Rights Act in which the adverse employment action is alleged to have been based on both permissible and impermissible considerations—a "mixed motive" case.
The Supreme Court reversed and remanded. Although it agreed that the jury instructions were erroneous, it disagreed with the Court of Appeals' application of Title VII mixed-motive principles. It noted that, whereas Title VII explicitly permits a claim where an improper consideration was "a motivating factor" in the adverse employment action, the ADEA provides a cause of action only if the action was taken "because of . . . age," and held that this difference in the statutory language precludes mixed-motive ADEA claims. Rather, an ADEA plaintiff must prove that age was the "but-for" cause of the adverse action. And this fact must be established by the plaintiff by a preponderance of the evidence, which may be direct or circumstantial; the burden-shifting analysis articulated in Price Waterhouse v. Hoplins, 490 U.S. 228 (1989), for Title VII cases does not apply in cases under the ADEA.
Justice Thomas delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy and Alito joined. Justice Stevens filed a dissenting opinion in which Justices Souter, Ginsburg and Breyer joined. Justice Breyer filed a dissenting opinion in which Justices Souter and Ginsburg joined.