Real world is in the eye of the age-bias beholder

Testimony heard by the Senate Judiciary Committee on October 7 reveals striking differences as to the “real world” impact of the sharply divided Supreme Court’s decision in Gross v FBL Fin Servs Inc. The Court held that a plaintiff claiming disparate treatment under the Age Discrimination in Employment Act (ADEA) must establish by preponderance of evidence that age was the “but for” cause of the adverse employment action challenged, not just one motivating factor.

This is a tougher standard to meet than that permitted under a “mixed-motive” theory that is applied in cases brought under Title VII of the Civil Rights Act of 1964 for other types of discrimination. In a Title VII “mixed-motive” case, when a plaintiff has produced evidence that a protected category, such as race, sex or religion, was one motivating factor in an employer’s adverse-employment decision, the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of the protected factor. The Court in Gross foreclosed this mixed-motive route to proving bias in ADEA cases.

What is the “real world” impact of the decision? Several witnesses testified during the Judiciary Committee’s hearing on Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination?

Jack Gross, the plaintiff who, at age 54 – after working for his employer for 32 years – was reassigned to a position he considered a demotion, was one of the witnesses who testified. Here’s part of the “real world” scenario he described:

I feel like my case has been hijacked by the [H]igh [C]ourt for the sole purpose of rewriting both the letter and the spirit of the ADEA. I am against activist judges, from either party, who use their personal ideology to misinterpret the law as intended. I am especially mortified when the only people (judges) who are immune from age discrimination vis-a-vis their lifetime appointments, can rewrite laws that are designed to protect people in the “real” world. (Emphasis added)

On the other had, referring to the potential choices facing the Supreme Court in Gross, attorney Michael W. Fox, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart, PC, characterized the choice ultimately made by the High Court as one that adopts “a more common sense rule, that in reality does little to alter the real world of age discrimination litigation.” (Emphasis added)

Does Gross change the age-bias landscape? As Jack Gross points out: “Headline after headline [has] proclaimed that it is now easier for employers to discriminate based on age, following the decision in my case.” And he’s not happy about being the person who set the wheels in motion. “I am not at all comfortable with having my name associated with a decision that is now causing pain to other employees in my age bracket simply because I took a stand seven years ago,” he said. “And, as expected, my employer is pushing for a new trial as quickly as possible to take advantage of the new court-made law before it can be corrected.”

That’s the “real world” litigation landscape for Jack Gross.

But the High Court’s decision may have a less than dramatic impact at trial. Fox pointed out that the burden-shifting framework used in mixed-motive cases is confusing for juries. “Lawyers representing plaintiffs rely much more on established pretext doctrines under McDonnell Douglas, rather than try for a mixed-motive analysis,” he observed. “In short, in many respects the dispute engendered by Gross is more academic than real world.” (Emphasis added)

Fox may be right about juries. Showing jurors that the reason given by an employer for an adverse employment action was really just a pretextual ruse to conceal age bias may be easier than relying on a mixed-motive theory that is conceptually difficult for jurors to understand and apply.

But what about the impact at the summary judgment stage of litigation? Employers defending against ADEA claims appear to have a better chance of obtaining summary judgment in their favor in the wake of Gross. Employers can prevail by showing there is no material fact question that the challenged adverse action was motivated by at least one legitimate, nonbiased reason – even when discrimination has been shown. In contrast, since plaintiffs will now be required to produce enough evidence to show that age was the only reason that motivated the action, they seem less likely to make it to trial.

Congressional action. Attorney Fox urged lawmakers to refrain from acting too swiftly. “Congressional action to reverse Gross, particularly without waiting to determine if in fact there is any real world impact would be short sighted [a]nd potentially provide a ‘cure’ with adverse consequences that would far outweigh the alleged evils being remedied,” he cautioned. (Emphasis added)

It seems unlikely that Congress will wait for news of any “real world” impact. The day before the Senate Judiciary hearing, Chairmen Tom Harkin (Iowa) of the Senate Health, Education, Labor and Pensions Committee, Patrick Leahy (Vt) of the Senate Judiciary Committee, and Congressman George Miller (Cal) of the House Education and Labor Committee introduced the Protecting Older Workers Against Discrimination Act with the goal of reversing the Gross decision and restoring civil rights protections for older workers.