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November 4, 2009
Zimmer on Gross ADEA Case and Employer Strategy
Over on Concurring Opinions, friend of the blog Mike Zimmer (Loyola-Chicago) has an interesting commentary on the recent Gross Supreme Court decision, which deals with the shifting of burdens of proof in ADEA cases.
Here's a taste:
Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas) . . . .
With Price Waterhouse gone, burden shifting for age act cases was also gone. Though we did not know this until Gross, the linkage standards of both the ADEA and, at least before the 1991 Amendments, Title VII were always the same: “but-for” with the burden of persuasion on the plaintiff. Neither Title VII nor the ADEA had burden shifting even though we did not know that until Gross was decided in 2009. Therefore, adopting a bold strategic move paid off for the employer and its counsel before the Supreme Court.
Read the whole thing. It is really quite good and suggests an important role that counsel for the defendants played in this pivotal employment discrimination case.
PS
November 4, 2009 in Commentary, Employment Discrimination | Permalink
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Comments
Well done, Mike. How you managed in but one paragraph to capture the tortured doctrinal background of burden- shifting and causation going back to Price Waterhouse is amazing.
I agree that Gross will have ramifications for other anti-discrimination areas, and was wondering what everyone thinks about the status of Mt. Healthy and its mixed motive burden-shifting paradigm. After all, Mt. Healthy was, in a sense, a godparent of the plurality opinion in Price Waterhouse. While Gross purported to rely in part on the statutory language of the ADEA, which of course is absent in 42 USC 1983, that part of the opinion was weak and, I think, would be a slim basis for distinguishing the two statutes. Perhaps, as you note in your blog, a distinction (at least as a descriptive matter) may be developing based on whether the type of discrimination at stake is “deserving of lesser importance” (perhaps with constitutional / free speech rights and Title VII rights on one side and the ADEA, ADA, and the like on the other).
Yet I would think even this Supreme Court would have difficulty finding a principled schema for classifying and distinguishing “greater deserving” from “lesser deserving” rights in order to answer the burden-shifting question (unless “greater deserving” simply is used to refer to statutes that contain clear causation and burden shifting language, akin to that found in the 1991 Title VII amendments).
So I throw out for discussion: where is Mt. Healthy in all of this, as well as those statutory regimes that have relied on Mt. Healthy to support their burden shifting – causation schemes?
I note as an aside — what about the NLRA? Would the Gross Court that cast doubt on Price Waterhouse do likewise with NLRB v Transportation Management and its support of the NLRB’s Mt. Healthy-like burden shifting scheme for discrimination under the NLRA? Yes, that case turned in part on Chevron deference, but would that stop the Court today given the manipulable nature of the Chevron doctrine.
Steven Kaminshine
Dean and Professor of Law
Georgia State University College of Law
Posted by: Steven Kaminshine | Nov 5, 2009 11:45:14 AM
