In the recent case of Gross v. FBL Financial Services, Inc., the United States Supreme Court held that a plaintiff must prove that his/her age was the “but for” cause of the adverse employment action they claim was discriminatory (e.g. demotion). Plaintiff was 54 years old when his employer reassigned him from his position as a claims administration director to a claims project coordinator. Many of his responsibilities in the director position were transferred to one of his subordinates who was in her early 40’s. Although Plaintiff’s compensation was not reduced, he believed that his transfer to the coordinator position was a demotion and filed an age discrimination claim under the federal Age Discrimination in Employment Act (ADEA).

When instructing the jury, the trial court utilized the “mixed motive” instruction. The court told that jury that Plaintiff only needed to show that his age was a “motivating factor,” among other factors, in order for him to state his case and then the burden would shift to the employer who would have to prove that it would have “demoted” Plaintiff regardless of his age. Based on the mixed motive instruction, the jury returned an award in Plaintiff’s favor. The employer appealed and the appellate court reversed the trial court finding that the Plaintiff must show “direct evidence” that age was a reason for the demotion before the court could provide a mixed motive instruction.

The case went before the Supreme Court on the sole issue of whether an ADEA plaintiff must present direct evidence of discrimination in order to receive a mixed motive jury instruction. However, in reviewing this issue, the Court actually decided that the mixed motive theory does not apply to the ADEA at all. It’s decision was based on the distinction it made between Title VII which permits the use of the mixed motive theory and the ADEA. The Court reviewed a previous decision, Price Waterhouse v. Hopkins, in which the court found that under Title VII, a plaintiff must first prove that discrimination was a “motivating” or “substantial” factor in the employer’s action, after which the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of the impermissible discriminatory consideration. Congress amended Title VII after Price Waterhouse to adopt its reasoning and clarify that a plaintiff need only prove that the discriminatory factor was a “motivating” factor not the “but for” cause of the decision.

The Court found that not only is the language of the ADEA and Title VII different, but also that Congress did not amend the ADEA when it amended Title VII to adopt the Price Waterhouse reasoning. Thus, the Court held that under the ADEA, a Plaintiff must prove that ‘but for” his or her age, the employer would not have taken the claimed discriminatory action.