Implications of Gross v. FBL, Quirky Question # 139

Quirky Question # 139:

I know you’ve written about last year’s Supreme Court decision of Gross v. FBL.  Does that holding have any application beyond the Age Discrimination in Employment Act?

Dorsey’s Analysis:

Your question – does last year’s Supreme Court decision of Gross v. FBL have implications beyond the Age Discrimination in Employment Act (ADEA) – is still playing out in the courts. But, the early indications are that the decision, decided on a close 5-4 vote, will be given broad interpretation and will be applied to statutes other than the ADEA.

Two preliminary observations are appropriate. First, the Gross decision is somewhat complicated, involving a re-examination of the high court’s Price Waterhouse “mixed motive” plurality decision and evaluatiing the consequences of the 1991 amendments to Title VII. (For an analysis of the Gross decision, use the “View By Topic” tab to the upper right and scroll down to “Age Discrimination;” then scroll down to the article regarding Gross.) Second, by way of disclaimer, I have not made an exhaustive search of all cases citing Gross to ascertain whether there is uniformity among the federal circuits with regard to how it is being interpreted. Given this fact, the discussion below is limited in scope. (To the extent that you are confronting a mixed-motive or “but for” issue in a non-Title VII case, you should conduct that legal research promptly.)

Before turning to your question, let’s briefly review the Gross holding to ensure that we are on the same page. Gross involved an interpretation of the ADEA and examined the question of whether the ADEA should be interpreted consistently with Title VII, the anti-discrimination statute enacted in 1964 during the Civil Rights movement. The Supreme Court majority concluded that the ADEA should not be interpreted in the same way as Title VII for three primary reasons.

First, following the 1989 Price Waterhouse decision (a confusing plurality opinion in which different justices articulated various rationales for the holding), Congress amended Title VII by passing the Civil Rights Act of 1991. The Civil Rights Act of 1991 codified certain portions of Price Waterhouse and made statutory changes amending other portions of the decision. Specifically, consistent with the decision, the amended statute included a provision that expressly deemed unlawful any employment practice motivated by Title VII’s protected criteria “even though other factors also motivated the practice.” In contrast, deviating from the Court’s holding, Congress added a provision that authorized limited relief to a plaintiff (inluding injunctive relief and attorneys’ fees) even if the employer was able to demonstrate that it would have made the same decision in the absence of any illegal motive.

Second, Title VII and the ADEA used different language on the issue of mixed motive decision-making (i.e., situations where an employer acts in part on the basis of a prohibited criterion – e.g., an individual’s race, sex, etc. – and in part on a legitimate criterion – e.g., an individual’s failure to meet the employer’s performance expectations). Whereas Title VII authorized a recovery for decisions based on a mixture of illegitimate and legitimate criteria, the ADEA does not, only prohibiting discrimination “because of” an individual’s age. The Gross Court interpreted the “because of” language to mean that age must be the “reason” for the employer’s decision, i.e., “a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Showing that the age was a “motivating factor” but not the “determinative” factor is insufficient to establish a claim of age discrimination.

Third, the high court placed considerable emphasis on the fact that when Congress passed the Civil Rights Act of 1991, amending Title VII to, among other things, address the mixed-motive context, the Court did not amend the ADEA. One can argue about whether Congress’ failure to amend the ADEA or other anti-discrimination statutes at the time it amended Title VII reflected an intent to treat the statutes inconsistently, was grounded on the belief that the courts would treat these largely similar statutes in the same way, or was merely sloppy statutory modification. Whichever explanation may be true, however, the resulting language of the anti-discrimination statutes is somewhat different and five of the current Supreme Court justices have seized upon these differences to give the statutes different meanings.

The bottom line is that the nation’s anti-discrimination statutes now have potentially significant different interpretations, based on the differences in statutory language. I leave to you to assess whether it makes sense to have one set of standards for race or gender discrimination claims and another set of standards based on identical discriminatory conduct for age discrimination. As I pointed out previously in my analysis of the Gross decision, from a practical standpoint, this situation is further complicated because often, plaintiffs assert claims involving more than one type of discrimination (e.g., race and age, gender and age, etc.). In my view, clearly instructing a jury on the different standards which they must apply and ensuring that they interpret those instructions correctly will be a challenge.

Your question addresses whether the differences referenced above between Title VII and the ADEA, as a result of the Gross decision, have been extended to any other statutes. Recently, the Seventh Circuit applied the same analysis articulated by the Supreme Court in Gross to the Americans with Disabilities Act (ADA). See, Serwatka v. Rockwell Automation, Inc., No. 08-4010 (January 15, 2010). In Serwatka, the plaintiff alleged that she was discharged by her employer because Rockwell regarded her as being disabled. The jury found that the employer discriminated against Serwatka on the basis of her perceived disability, but also found that her employer would have discharged her even if it did not perceive her as disabled.

The District Court treated the jury’s findings as a “mixed motive” determination, concluding that Rockwell’s discharge decision was based on both legal and illegal motives. Because the trial court viewed the jury’s findings as reflective of a mixed motive determination, the Court analogized to the Title VII context and reduced the plaintiff’s damages to zero. Because Zerwatka was entitled to other types of mixed motive relief, however, again relying on the parallel Title VII analysis, the court granted Zerwatka declaratory and injuctive relief and awarded her a portion of the attorneys’ fees and costs she had incurred (of the $153,290 fees and costs that were first awarded, the court allowed $30,658).

While complimenting the lower court’s analysis, the Seventh Circuit reversed in light of the intervening Gross decision. The Seventh Circuit zeroed out the plaintiff completely. Comparing the ADA’s language to Title VII (just as the Supreme Court did with regard to the ADEA in Gross), the Seventh Circuit found that the ADA’s language was similar to the ADEA’s, not Title VII’s. As noted by the Court, the ADA states “no covered entity shall discriminate against a qualified individual with a disability because of the the disability . . .” Given that the ADA has the same “because of” language found in the ADEA, the appellate court found that the “but for” analysis set forth in Gross applied. Likewise, the ADA did not have a mixed motive provision provision that was akin to that found in Title VII as a result of the Civil Rights Act of 1991.

As the Seventh Circuit summarized, “Like the ADEA, the ADA renders employers liable for employment decisions made “because of” a person’s disability, and Gross construes “because of” to require a showing of but-for causation. Thus, in the absence of a cross-reference to Title VII’s mixed motive liability language or comparable stand-alone language in the ADA itself, a plaintiff complaining of discriminatory discharge must show that his or her employer would not have fired him but for his actual or perceived disability; proof of mixed motives will not suffice.”

Curiously, as the appellate court aknowledged, the ADA itself was amended in 2008, effective January 1, 2009, modifying the “because of” language to “on the basis of” language. The court found it unnecesary to consider whether this language change mandated a different analysis since Serwatka had been discharged in 2004, several years prior to the statutory modification.

The bottom line is that at least one federal circuit court has interpreted the pre-amendment version of the ADA to fall within the Gross analysis. In short, a plaintiff may not bring a mixed motive claim under the ADA, just as a plaintiff may not bring a mixed motive claim under the ADEA. Rather, an ADA plaintiff must show that the actual or perceived disability was a “but for” cause of the adverse employment action.

Note, however, as discussed in the pending federal employment legislation (Quirky Question # 135), Congress is considering the Protecting Older Workers Against Discrimination Act, a statute that essentially would legislatively reverse the Supreme Court’s holding in Gross. Whether that legislative effort will be successful remains to be seen. Whether it will be expanded to sweep in the ADA as well also is difficult to predict. Again, however, it seems odd that identical conduct would be treated completely differently based exclusively on the protected class to which the plaintiff belongs. In our view, there should be uniformity among the major federal anti-discrimination statutes.

Dorsey & Whitney

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