Charting The Supreme Court’s Burden-Shifting Jurisprudence in Employment Discrimination Cases Through Gross v. FBL Services, inc. by Jeff Weber

I. Introduction

“[I]t has become evident in the years since . . . that [the] burden-shifting framework is difficult to apply. . . . Thus, even if [the burden-shifting framework were] doctrinally sound, the problems associated with its application have eliminated any perceivable benefit from extending its framework to ADEA claims.”[1] With this sweeping language, Justice Thomas punctuated the Supreme Court’s repudiation of mixed-motive burden-shifting for employment discrimination claims brought under the Age Discrimination in Employment Act (ADEA)[2] and set age-related employment discrimination claims on a decidedly different track from its counterparts under Title VII of the Civil Rights Act of 1964 (Title VII).[3] In doing so, the Supreme Court halted the inchoate development toward a uniform approach concerning the burden of persuasion in employment discrimination claims and, for now, instituted the coexistence of two separate analytical frameworks for allocating the burden of persuasion in employment discrimination cases.

While ostensibly procedural and esoteric, the degree to which courts will ease the evidentiary burden on plaintiffs in employment discrimination cases has enormous practical significance and is an important reflection of current policy preferences. Because employers often control much of the evidence relevant to adverse employment actions, employees face significant obstacles in proffering evidence that not only survives pre-trial motions but also proves beyond a preponderance that the employer made the adverse decision on the basis of an illegitimate reason.[4] Consequently, burden-shifting has been employed as a means of neutralizing this perceived inequity.[5] At the same time, shifting the burden of persuasion may ultimately tilt the scales too far in favor of employees, and the costs associated with its administration may outweigh the perceived benefits it provides to employment discrimination plaintiffs.[6]

This essay examines the burden-shifting approaches the Supreme Court has attempted to implement to solve the evidentiary asymmetries in the employment discrimination context, and it also touches on some of the rationales behind the mixed-motive burden-shifting analysis employed in Title VII cases and looks at the Supreme Court’s reasoning for departing from the framework in Gross. It concludes by arguing that the Supreme Court’s departure from the mixed-motive burden-shifting framework for age-related discrimination cases was a misstep that confusingly demarcates the employment discrimination realm and commandeers a role best suited for congress.

II. The History of the Court’s Burden-Shifting Jurisprudence

Prior to Gross, whether burden-shifting would be permitted depended on the theory of discrimination.[7] So-called “pretext” employment discrimination cases, where an employer claims a legitimate reason for an adverse employment action and an employee charges that there was an illegitimate reason for the action, placed the ultimate burden of persuasion as to whether the illegitimate reason was the true cause of the termination on the employee.[8]

In contrast, “mixed-motive” cases, which involved situations where the employee has shown that the employer relied on both illegitimate and legitimate reasons for the adverse employment action, permitted shifting the burden of persuasion to the employer.[9] In terms of employment discrimination claims that are based on race, color, sex, religion, or national origin, Congress explicitly codified and endorsed burden-shifting in mixed-motive cases by an amendment to Title VII in the form of Section 107 of the 1991 Civil Rights Act.[10] Subsequently, many courts presumed that mixed-motive analysis applied in non-Title VII cases as well,[11] such as claims under the ADEA.

While the above definitions create the impression that these theories are neatly categorized, courts have ultimately struggled to find a consistent principle differentiating the circumstances warranting pretext versus mixed-motive treatment.[12] One method for distinguishing when either framework would apply was to differentiate the application of the two frameworks based on the quality of the evidence. More specifically, courts read into Congress’ amendment to Title VII a requirement that plaintiffs must show direct evidence of discrimination to obtain a mixed-motive instruction.[13] Thus, cases with direct evidence fell within the purview of the mixed-motive framework, while cases with circumstantial evidence of discrimination remained in the realm of pretext analysis.[14]

The Supreme Court would later undo this state of affairs in the Title VII context by holding that plaintiffs in Title VII cases were no longer required to proffer direct evidence of discrimination in order to obtain a mixed-motive instruction.[15] Consequently, the Court had taken a significant step toward liberalizing the circumstances under which plaintiffs could obtain a mixed-motive burden-shifting instruction in employment discrimination cases. It then appeared that the Supreme Court was poised to unify disparate treatment law in one respect—by removing the heightened evidentiary standard for mixed-motive frameworks across the whole spectrum of employment discrimination statutes and claims. Rather than maintain such a course, the Supreme Court instead resolved to add another chapter to the tumultuous history of employment discrimination law in Gross v. FBL Financial Services.

III. Gross v. FBL Financial Services

In Gross, the Court encountered the same question concerning the evidentiary burden a plaintiff must meet to obtain a mixed-motive instruction, only this time in the context of an age discrimination claim under the ADEA. However, rather than reach the issues raised by the parties, the Supreme Court reframed the issue more generally as a question of the applicability of mixed-motive burden-shifting to ADEA cases. The Court ultimately held that the mixed-motive burden-shifting framework never applies to employment discrimination claims brought under the ADEA.

The Court’s holding essentially rested on two major premises: (1) that its interpretation of the ADEA would not be controlled by its Title VII precedents and (2) that there are significant textual differences between the operative language of Title VII and the ADEA. It noted that the ADEA proscribes any type of discrimination or adverse employment action because of an employee’s age. In contrast, Title VII, as amended by the Civil Rights Act of 1991, requires only that an improper consideration play a motivating part in any adverse employment action. In the Court’s view, the ADEA’s language connotes but-for causation, and consequently plaintiffs under the ADEA must now prove by a preponderance of the evidence that age was the but-for cause of an employer’s adverse action.

In addition to the straightforward legal analysis, Justice Thomas also alludes to the myriad complications arising from the attempted application of the burden-shifting framework. For one, the framework can be difficult to properly articulate to juries, leading to confusion and potentially erroneous verdicts. Moreover, the courts themselves have also proven haphazard in their application of the burden-shifting framework. It is possible that the more straightforward burden of proof that Thomas lays down in Gross will prove more efficient and less error-prone than the mixed-motive framework the courts have struggled to utilize in employment discrimination cases.

IV. Unifying the Burden-Shifting Jurisprudence Across Employment Discrimination Cases

The question of whether the mixed-motive burden-shifting framework is a desirable one is neither easy nor clear-cut. Nonetheless, the Supreme Court’s unilateral maneuver away from mixed-motive analysis for ADEA claims creates its own procedural difficulties, prevents the formation of any cohesive policy towards employment discrimination plaintiffs, and ultimately commandeers a policymaking role best left to congress.  Consequently, the Court should read the ADEA to permit mixed-motive analysis for employment discrimination claims, and only congress should institute any deviation from that model.

As Justice Thomas’ majority opinion in Gross notes, the burden-shifting framework has proven confusing and difficult to apply. At the same time, however, Justice Thomas’ own decision will contribute to increased confusion and complication in any cases where a plaintiffs raises both ADEA and Title VII claims.[16] Juries will have to be instructed on two separate burdens of persuasion and will also have to parse out evidence to determine whether plaintiffs have met the burden of persuasion in ADEA claims and whether defendants have met the burden of persuasion in Title VII cases.

In addition, the immediate result of the Gross decision—refusing to treat all forms of employment discrimination equally—also seems incoherent from a policy perspective.  Rather than creating the same procedural landscape for all employment discrimination plaintiffs, it creates a system whereby you are at a distinct procedural advantage if you allege a discrimination claim under Title VII.[17] It is difficult to glean a cogent policy judgment from the decision to treat plaintiffs who allege age discrimination differently from those who allege gender or race discrimination.  The focus of these statutes should be determining the most effective and fair way to determine whether discrimination has occurred, a focus that should not change across plaintiffs.

Finally, it would seem that congress, not the judiciary, is the best positioned to consider all the relevant information and provide a cohesive policy solution.[18] The anti-discrimination statutes exist as responses to social and empirical data about persisting discrimination[19]—weighing whether the evidence justifies continued employment of the mixed-motive framework should reside with a politically accountable branch that has the institutional competency to deftly handle such a complex question.

V. Conclusion

The Supreme Court’s burden-shifting jurisprudence has taken a long, circuitous route to reach its current position. Rather than achieving a degree of uniformity and coherence one might expect from such a thorough vetting, the Court’s burden-shifting jurisprudence remains a vexing source of inconstancy and incongruity. While the administrative difficulties that characterize the mixed-motive burden-shifting framework’s application are not without merit, the consequences of removing the framework for ADEA claims creates its own obstacles. Moreover, much of the underlying empirical data and policy consequences associated with burden-shifting in the employment discrimination context are best addressed by a branch with investigatory powers and political accountability to provide a cohesive policy solution that considers all the relevant information.  Unfortunately, the current disjunction between the ADEA and Title VII’s burden-shifting schemes likely means that the employment discrimination plaintiffs will continue to grapple with future changes and all-around upheaval in this area of law.

[1] Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2352 (2009).

[2] Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, §§ 2–17, 81 Stat. 602, 602–08 (codified as amended at 29 U.S.C. §§ 621–34 (2006)).

[3] Civil Rights Act of 1991, Pub. L. No. 102-166, § 107, 105 Stat. 1071, 1075 (codified at 42 U.S.C. § 2000e-2(m) (2006)).

[4] Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 359 n.45 (1977) (noting that employers control access to proof and are in a better position to show why an employee was denied or suffered an adverse employment decision).

[5] See id.

[6] See Gross, 129 S. Ct. at 2352.

[7] See Price Waterhouse v. Hopkins, 490 U.S. 228, 260 (1989) (White, J., concurring in the judgment).

[8] See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

[9] See Desert Palace, Inc. v. Costa, 539 U.S. 90, 93 (2003).

[10] Civil Rights Act of 1991, Pub. L. No. 102-166, § 107, 105 Stat. 1071, 1075 (codified at 42 U.S.C. § 2000e-2(m) (2006)).

[11] See McNutt v. Bd. of Trs. of Univ. of Ill., 141 F.3d 706, 707 (7th Cir. 1998) (“By 1991 our Circuit and courts across the country had begun to adopt the Price Waterhouse approach in all [non-Title VII] mixed-motive discrimination cases.”).

[12] See Jamie Darin Prenkert, The Role of Second-Order Uniformity in Disparate Treatment Law: McDonnell Douglas’s Longevity and the Mixed-Motives Mess, 45 Am. Bus. L.J. 511,  530–34 (2008).

[13] See Desert Palace, 539 U.S. at 95.

[14] See Mohr, 306 F.3d 636, 639–41.

[15] See Desert Palace, 539 U.S. at 101.

[16] Gross, at 2357 (Stevens, J., dissenting).

[17] See Ann Marie Tracey, Still Crazy After All These Years? The ADEA, The Roberts Court, and Reclaiming Age Discrimination as Differential Treatment, 46 Am. Bus L.J. 607, 609 (2009) (“The practical effect of [the Gross Court’s] action is to largely undermine the efficacy of the ADEA for those claiming disparate treatment.”).

[18] See Laura Beth Nielson & Robert L. Nelson, Rights Realized? An Empirical Analysis of Employment Discrimination Litigation as a Claiming System, 2005 Wis. L. Rev. 663, 665 (2005) (noting lack of judicial capacity to deal with social science and make policy recommendations).

[19] See Nielson & Nelson, supra note 18, at 673–75.

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