Monday, October 26, 2009

Undoing Some Recent Supreme Court Damage

People’s motivations for their conduct can be complicated. It is rare that someone has just one reason for doing something. For example, I might decide to take a vacation to Florida in the winter because it is sunny, and also because I want to visit my relatives there. In other words, I have mixed motives.

The plaintiff in a case recently decided by the Supreme Court also had to deal with the problem of mixed motives. Jack Gross had been working for a company called FBL for more than thirty years, starting when he was in his 20's. In 2003, when he was 54 years old, FBL reassigned him to a position called “claims project coordinator,” and transferred many of the duties he had previously performed to his subordinate, a woman in her 40's.

Gross filed suit, alleging that he was demoted due to his age. FBL responded that it reassigned Gross as part of a corporate restructuring and that Gross’ new position was better suited to his skills. So what is a court to do if both reasons - illegal age discrimination AND a valid restructuring - played a part in FBL’s decision? The trial judge instructed the jury that if the forbidden reason had played any part in FBL's action, they must rule for Gross. The jury found in Gross’s favor and awarded him $ 46,945 in lost compensation.

Since 1967, with the passage of the Age Discrimination in Employment Act (“ADEA”), it has been illegal for employers to discriminate against their older employees (age 40 and above) on the basis of their age. Although the ADEA has many similarities with Title VII of the Civil Rights Act, it is not identical. Over the years, the differences have been the subject of much debate and many law suits.

One of those differences involves how to deal with mixed motives. Under Title VII, if a plaintiff proves that his race, for example, was a “motivating factor” in an adverse action taken by his employer, he has established a claim. At that point, the burden of persuasion shifts to the employer to show that it would have taken the same action anyway. Thus, the Gross trial court's mixed motive instruction to the jury.

But when FBL appealed Gross’s verdict, the Court of Appeals held that the ADEA was different from Title VII. They held that under the ADEA, in order to win, Gross needed to prove not just that that age was “a motivating factor,” but that it was FBL’s “determining factor” in reassigning Gross and replacing him with his younger subordinate.

The Supreme Court agreed. In a 5-4 split, the Supreme Court held that a plaintiff bringing an ADEA claim must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. See Gross v. FTL Financial Services.

Earlier this month, both houses of Congress introduced legislation intended to remedy the Supreme Court’s evisceration of the ADEA. See the House and Senate versions here.

As they did when the Supreme Court’s 5-4 conservative majority ruled against Lilly Ledbetter, Congress has now introduced legislation to overrule this decision. Introducing the House version, Rep. George Miller (D) of California’s 7th District noted:
The same conservative Supreme Court justices responsible for the backward ruling against Lilly Ledbetter have now thrown another legal barrier in front of hard-working older Americans. Workplace discrimination based on age is just as wrong as discrimination based on any other irrelevant factor -- and it should be treated as such in the court of law.
Interestingly, the House version has a retroactivity provision that would return things to the way they were before the Gross decision. A similar provision was included in the Ledbetter Act which was signed into law in January 2009.

Some commentators have noted that the acronym for the “Protecting Older Workers Against Discrimination Act” is POWADA. I like it.

-Elizabeth Newman

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