Friday, December 5, 2008

Supreme Court to Tackle Non-Title VII Mixed Motive Standard

4united_states_supreme_court_112904 I was just completing an exam review today with my employment discrimination law students and I noted that they should remember that the old Price Waterhouse standard might still apply to mixed motive cases under Section 1981, the ADEA, ADA, and retaliation claims under Title VII.  The argument is that the Civil Rights of Act of 1991 only applies to Title VII claims and not to the other laws which are not mentioned in the amendment.

Today, the Supreme Court decided to take cert. in the case of Gross v. FBL Financial Services, Inc., No. 08-441 (opinion below: Gross v. FBL Financial Services, Inc. (8th Cir 05/14/2008), that will help decide exactly what standards should apply in a non-Title VII mixed-motive discrimination case.

From Ross Runkel's Law Memo:

Gross sued the employer, asserting an age discrimination (discriminatory demotion) claim under the Age Discrimination in Employment Act (ADEA). Gross prevailed after a jury trial. The 8th Circuit reversed . . . .

The 8th Circuit held that "Section 2000e-2(m) [Section 703(m)] does not apply to claims arising under the ADEA." The court reasoned that "[b]y its terms, the new section applies only to employment practices in which 'race, color, religion, sex, or national origin' was a motivating factor." The 8th Circuit noted "[w]hen Congress amended Title VII by adding Section 2000e-2(m), it did not make a corresponding change to the ADEA, although it did address the ADEA elsewhere in the 1991 Act." Since the jury in Gross' case was instructed consistent with Section 2000e-2(m) rather than Price-Waterhouse, the 8th Circuit reversed.

The US Supreme Court granted certiorari on December 5, 2008 to review the judgment of the 8th Circuit.

My thought is that the Court's ruling should not only apply to the ADEA, but to all the other non-Title VII employment laws, including the retaliation provisions of Title VII (Section 704), the Americans with Disabilities Act (ADA), and Section 1981.

As far as my prediction, this case is going to be a tough one to predict.  On the one hand, I could see the conservative Justices saying that the CRA 1991 does not touch the ADEA and other laws and Congress has the power to change this if it wants.  On the other hand, there might be some weight to the argument that since Title VII substantially applies the proof schemes for these other laws, it was not necessary to specifically name them.

I always thought this was a gaping hole in employment discrimination law and even if the Court finds the old Price Waterhouse standards apply, the one good things about cert being granted is that now the Obama administration and he Democratic Congress will be alerted for the need for legislation to harmonize this mixed-motive area of employment discrimination law.


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I'm going to disagree with Paul on this one (surprise). I think the Court has given signals (in Smith and, particularly, Meacham) that the CRA 1991 doesn't apply to the ADEA. I do think that Desert Palace's rule on circumstantial evidence goes beyond the Title VII realm, but Congress's failure to amend the ADA and ADEA--especially the affirmative defense/remedial issue--is going to mean that CRA 1991 is Title VII only.

Posted by: Jeff Hirsch | Dec 5, 2008 6:11:12 PM

I mostly agree with Jeff, but it should be noted that in Meacham, the Court appeared to somewhat rein in Smith's reasoning that pre-1991 CRA case law applies to ADEA cases 128 S.Ct. 2395, 2404 ("Although City of Jackson contains the statement that “ Wards Cove's pre-1991 interpretation of Title VII's identical language remains applicable to the ADEA,” 544 U.S., at 240, 125 S.Ct. 1536, City of Jackson made only two specific references to aspects of the Wards Cove interpretation of Title VII that might have “remain[ed] applicable” in ADEA cases...If, indeed, City of Jackson's reference to Wards Cove could be read literally to include other aspects of the latter case, beyond what mattered in City of Jackson itself, the untoward consequences of the broader reading would rule it out.")

The same "untoward consequences" could be applied to Hopkins as well as Wards Cove. It will be interesting to see how the Court resolves this tension.

Posted by: Guest | Dec 7, 2008 9:01:16 AM

Agreed. Meacham was careful not to broadly say that all pre-CRA 1991 law doesn't apply, but I suspect that as the cases come up, the Court is going to apply Wards Cove et al. If they're already willing to apply Wards Cove's rule about identifying a specific cause for the DI, then I don't know what will stop them from applying other holdings. But heaven knows that I've been wrong before on my predictions.

Posted by: Workplace Prof | Dec 7, 2008 10:12:32 AM

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