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James L. Craney

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Education

St. Louis University (J.D. 2002)
University of Texas, Houston (M.P.H. 1998)
Southern Illinois University (M.S. 1995)
University of Illinois (B.S. 1991)

"Mixed-Motive" Jury Instructions Never Appropriate

1/1/2010 -

United States Supreme Court Holds that “Mixed-Motive” Jury Instructions
are Never Appropriate in an Age Discrimination Case
brought under the Age Discrimination in Employment Act
      In Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009), the United States Supreme Court held that 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.  The Gross Court was presented the following question: must a plaintiff present direct evidence of age discrimination in order to obtain a “mixed-motives” jury instruction in a suit brought under the ADEA.  Rather than answering that question, the Court, in a 5-to-4 opinion, held that a “mixed-motives” jury instruction is never proper in an ADEA case, and reversed the decision below.

      The facts of the Gross case are as follows.  The plaintiff Jack Gross began working for FBL Financial Services (“FBL”) in 1971.  In 2001, Gross held the position of claims administration director.  However, in 2003, at the age of 54, Gross was reassigned to the position of claims project coordinator.  At that same time, FBL transferred many of Gross’ job responsibilities to a newly created “claims administration manager” position.  A former subordinate of Gross’ was assigned to that position.  At the time of the re-assignment, that subordinate was in her early 40s.

      In April of 2004, Gross filed suit in federal District Court.  He alleged that his reassignment to the position of claims project coordinator violated the ADEA.  The matter proceeded to trial.  At trial, evidence was presented, showing that Gross’ reassignment was based, at least in part, upon his age.  FBL argued that the reassignment was related to an overall corporate restructuring, and that it was a position “better suited” to Gross’ particular skills.”

     At the close of evidence, the District Court instructed the jury - over FBL’s objections - that it must return a verdict for Gross if age was a “motivating factor” in his reassignment.  Specifically, the court instructed the jury that it must return a verdict for the plaintiff if it found that he had proven that FBL demoted him to claims project coordinator and that his age was a motivating factor.  Id at 2347.  The jury was instructed that Gross’ age would constitute a “motivating factor” if it played a part or role in FBL’s decision to demote him.  Id.  Under the court’s instructions, the jury was to return a verdict for FBL, if it found FBL had proven that FBL would have demoted Gross, regardless of his age.  Id.

      The jury ultimately returned a verdict for Gross, awarding him $46,945 in lost compensation, and FBL appealed to the United States Court of Appeals for the Eighth Circuit.  The Court of Appeals reversed the circuit court, and remanded the matter for a new trial.  That court held that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989).

      In Price Waterhouse, the United States Supreme Court considered the appropriate burden of proof in so-called “mixed-motive” cases, brought under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”).  42 U.S.C. S. 2000e et seq.  In mixed-motive cases, an employee alleges that he suffered an adverse employment action (e.g., termination, demotion, reassignment) due to both permissible and impermissible considerations.  In a 6 to 4 decision, the Price Waterhouse Court ultimately held that if a plaintiff proves that discrimination was a “motivating,” or “substantial” factor in the employer’s action, then the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of the impermissible consideration.  Importantly, Justice O’Connor, in a concurring opinion, further noted that before the burden of persuasion could shift to the employer, the employee must present “direct evidence” that an illegitimate criterion was a substantial factor in the employment decision.

     In the Gross case, the Eight Circuit Court of Appeals followed the Price Waterhouse analysis, and held that the district court had improperly instructed the jury.  Because Gross had not presented any direct evidence that age had formed the basis for his reassignment, the appellate court concluded that the jury instructions were flawed.  The court of appeals noted that - absent any direct evidence of an improper motive - the burden of persuasion does not shift to the defendant.  Thus, the Eighth Circuit held that Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims.  Under that analysis, the jury should have been instructed only to determine whether Gross had carried his burden of proving that age was the determining factor in FBL’s employment action.  Id at 2348.

     Following the ruling by the Eighth Circuit, the United States Supreme Court granted certiorari to determine the issue of whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motive instruction in a non-Title VII discrimination case.  However, the Supreme Court noted that before that question could be answered, it must be determined whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives case brought under the ADEA.  The Supreme Court held that it does not.

      In reaching this conclusion, the Court noted that the Price Waterhouse decision examined the burden shifting scheme associated only with Title VII claims.  Title VII, as amended by Congress, currently provides as follows:

[a]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

 42 U.S.C.S. 2000e-5(g)(2)(B).  The Court observed that the plain language of Title VII thus provides that the unlawful termination may be based partially upon a “motivating factor.”  The Gross Court noted that, in contrast, the ADEA makes no express reference to mixed-motive cases.  The ADEA provides, in relevant part:

[I]t shall be unlawful for an employer … to fail or refuse to hire or to discharge any individual or otherwise discriminate  against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.

 29 U.S.C.S. 623(a)(1).

      Thus, the Supreme Court noted that unlike Title VII, the ADEA does not expressly provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.  Moreover, the Court noted that Congress had neglected to add such a provision to the ADEA, despite the fact that it had amended Title VII to add such language, while contemporaneously amending the ADEA without adding such language.  The court noted that such “negative implications” raised by disparate provisions are strongest when the legislature considers the provisions simultaneously, and makes the choice to insert language into only one of the provisions.  Id, at 2349 (citing Lindh v. Murphy, 117 S.Ct. 2059 (1997)).

      The practical implication of the Gross decision is that more age-discrimination claims will likely be brought in state courts.  Both Missouri and Illinois have enacted Human Rights Acts which make it unlawful for an employer to take adverse action against an employee based upon age, where the employee is at least 40 years of age.  (See, Illinois Human Rights Act, 775 ILCS 5/1-103(Q); Missouri Human Rights Act, R.S.Mo. 213.055.)  In both states, it appears that the standard of proof for maintaining such a state law claim is currently lower than the standard set out in the Gross decision.

      For example, under Illinois law, a plaintiff may use either direct or indirect evidence to allow a jury to infer that age was a motivating factor in the employer's decision.  Sola v. Illinois Human Rights Comm’n., 316 Ill.App.3d 528 (1st Dist. 2000).  Missouri case law is less clear regarding whether the motivating factor standard applies.  Generally, Missouri courts apply the federal Title VII burden-shifting analysis when faced with a state-law claim of age discrimination.  See, Herrero v. St. Louis Univ. Hospital, 109 F.3d 481 (8th Cir. (Mo.) 1997); West v. Conopco Corp., 974 S.W.2d 554 (Mo.App.W.D. 1998).  Under that standard, if the defendant provides evidence to support a non-pretextual basis for the determination, then the plaintiff must show that age was a factor in her termination.  Id.  However, Missouri courts have also noted that the same analysis applies for age discrimination claims under both the ADEA and the MHRA.  West, 974 S.W.2d at 556.  Thus, the question will be whether these state courts will adopt the Gross standard for future claims brought under their respective Human Rights Acts.



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