Age Discrimination Mixed Motive Standard Before the Supreme Court

Employment discrimination claims will continue to garner the Supreme Court’s attention in 2009. On December 5, 2008, the Supreme Court granted certiorari in Gross v. FBL Financial to decide the following issue:

Must a plaintiff present direct evidence of discrimination in order to obtain a mixed motive instruction in a non-Title VII discrimination case?

Gross asserted an age discrimination claim under the Age Discrimination in Employment Act (ADEA) and prevailed before a jury. At trial, Gross was required to prove that his age was a “motivating factor” in his employer’s decision to demote him. In doing so, Gross relied on circumstantial evidence. The 8th Circuit Court of Appeals, however, reversed on the basis that the trial court should have required Gross to use direct evidence to prove age discrimination under the ADEA.

The Supreme Court and Massachusetts courts are no strangers to mixed motive issues. In Price Waterhouse v. Hopkins, which involved gender discrimination under Title VII, the United States Supreme Court held that the burden of persuasion shifts to the employer once mixed motives have been shown. Justice O’Connor’s concurring opinion in Price Waterhouse, however, required an employee to produce “direct evidence” of discrimination where mixed motive is at issue. Congress later amended Title VII to make “motivating factor” — and not “direct evidence” — the standard required in mixed motive cases.

The Supreme Judicial Court (SJC) of Massachusetts faced a similar issue in Wynn & Wynn, P.C. v. Massachusetts Commission Against Discrimination, which involved gender discrimination claims under the Fair Employment Practices Act (M.G.L. c. 151B, s. 4). There, the SJC followed the Supreme Court’s reasoning in Price Waterhouse, holding that the burden shifts to the employer once mixed motives are shown. Once the burden shifts, the employer can avoid liability only by proving that it would have made the same decision even without the illegitimate motive.

In Wynn & Wynn, the SJC also discussed the quality of evidence needed in mixed motive cases, noting that an employee must “demonstrate with a high degree of assurance” that the challenged employment decision was a “mixture of legitimate and illegitimate motives.” The SJC ultimately applied a direct evidence standard, stating there must be “some strong (direct) evidence of discriminatory bias.” The SJC made clear that direct evidence “consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision.”

Subsequent to Price Waterhouse and Wynn v. Wynn, Congress amended Title VII to make “motivating factor” — and not “direct evidence” — the standard required in mixed motive cases. The Supreme Court noted this change in deciding Desert Palace, Inc. v. Costa, where it held that “[i]n order to obtain [a mixed motive instruction under Title VII], a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘[protected class] was a motivating factor for any employment practice.’”

Unlike Title VII, Congress has not detailed the quality of evidence needed under the ADEA. As Professor Paul Secunda of Marquette University Law School has commented, “this case is going to be a tough one to predict.”