Wednesday, September 9, 2009

A Silver Lining to the Gross ADEA Supreme Court Case Debacle?

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.

ScalesIn 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?


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I'm not sure why this should be an issue in the first place. The Gross opinion noted that an ADEA plaintiff must show "but-for" causation, and then cited to Reeves v. Sanderson. This gives a pretty big clue that McDonnell-Douglas is still viable in ADEA cases.

Posted by: Guest | Sep 9, 2009 4:08:31 PM

Well, I agree that Reeves should have already been determinative. However, the Supreme Court in Gross goes out of its way to say: it “has not definitively decided whether the evidentiary framework of
[McDonnell Douglas], utilized in Title VII cases is appropriate in the ADEA context.” 129 S. Ct. at 2349 n.2. Given that the Court is somehow willing to reject prior understandings of how the law applies under ADEA, I see no purpose for this statement given Reeves. But the Court in Gross did try to make sure that we all know that it hasn't definitely said it. So the fact that Geiger and the other jurisdictions that have addressed it seem to say that McDonnell Douglas analysis applies helps until the Supreme Court decides it wants to definitely say so.

So if this 6th Circuit.

Posted by: Michael Green | Sep 9, 2009 5:27:18 PM

Does anyone know if there is any move in Congress to amend the ADEA to allow the mixed motive method.

Posted by: Dan | Sep 24, 2009 11:31:17 AM

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