Divided court backs employers in age-bias lawsuits (June 18, 2009)

A narrowly-divided Supreme Court ruled today that the burden in an age bias case rests with the employee, not the employer.

Jack Cross began working at FBL Financial Group in 1987. During a company reorganization in 2001, Gross – the claims admistration vice president – was reassigned to the position of claims administration director. He considered the position a demotion because his points were reduced under the company’s point system for determing salary grades. In 2002, FBL eliminated Gross’ position and reassigned him. Some of his old responsibilities were transferred to a new claims administration manager position.

Although Gross’ new position had the same salary points and pay grade as the manager position, he contended the reassignment was a demotion because the claims administration manager “assumed the functional equivalent of Gross’ former position, and his new position was ill- defined and lacked a job description or specifically assigned duties.”

Gross sued FBL, alleging that in making the 2003 reassignment, the company demoted him because of his age. The trial court used a mixed-motive jury instruction, instructing the jury that “Gross had the burden to prove that (1) FBL demoted Gross to claims project coordinator on January 1, 2003, and (2) that Gross’s age was a motivating factor in FBL’s decision to demote Gross.” The trial court further charged the jury that the “verdict must be for FBL... if it has been proved by a preponderance of the evidence that defendant would have demoted plaintiff regardless of his age.” The jury returned a verdict in favor of Gross, awarding lost compensation in the amount of $46,945.

On appeal, FBL argued in part that the trial court had erred in giving the mixed-motive instruction. The Eighth U.S. Circuit Court of Appeals reversed the judgment and remanded the case for a new trial, holding that the mixed-motive jury instruction was not correct because it shifted the burden of persuasion on a central issue in the case.

On June 18, 2009, the Supreme Court vacated and remanded the lower court decision with Justice Clarence Thomas writing for the 5-4 majority.

"A plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the 'but-for'cause of the challenged adverse employment action," Thomas wrote. "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."

Justice John Paul Stevens filed a dissent joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

"I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking," Stevens wrote. "I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction."

Justice Breyer also filed a dissent joined by Justices Souter and Ginsburg.

Question presented: Whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.