Wednesday, September 9, 2009
Thanks to Ross Runkel of Employment Law Memo fame for bringing to my attention one of the first circuit court cases to interpret the meaning of the Supreme Court's Gross ADEA case (Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009)). You might recall that that decision adopted the dissent's approach in Price Waterhouse to causation in mixed motive ADEA cases.
In Geiger v. Tower Automotive (6th Cir 09/04/2009), the Sixth Circuit may have limited some of the damage inflicted by Gross on ADEA plaintiffs. In Geiger, an employee sued under the ADEA for an allegedly discriminatoy RIF. Although the employee lost on summary judgment and the Sixth Circuit affirmed (not that unusual, I guess), the court discussed the impact of Gross on ADEA cases of this type.
As described by Ross:
1) The Court held in Gross that “[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.” Thus, under Gross, an employee must establish causation under a “but for” (rather than motivating factor) standard. The court noted that Gross overruled 6th Circuit precedent to the contrary on this issue.
2) Gross expressly declined to decide whether the McDonnell Douglas burden-shifting framework applies to circumstantial evidence cases under the ADEA. The court concluded that “the McDonnell Douglas framework can still be used to analyze ADEA claims based on circumstantial evidence.”
It is the second part of this decision that gives employment discrimination plaintiffs some hope, especially because the court also noted that the 3rd and 7th Circuits (the only other circuits that have addressed this issue post-Gross) have arrived at the same conclusion.
Whoever thought we would be looking at adherence to the McDonnell Douglas framework as a good thing?