Yesterday, the U.S. Supreme Court, in Gross v. FBL Financial Services, Inc., decided that age discrimination cases should not follow the same burden of proof analysis that the Court has applied in other kinds of discrimination cases. Specifically, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a case under Title VII of the Civil Rights Act of 1964, the Court had held that if an employee showed that discrimination was a motivating factor in the employer’s challenged employment action, the burden of persuasion should shift to the employer to show that the employer would have taken the same action in the absence of the discriminatory motive. The Court has now held that courts should not follow this analysis in cases brought under the Age Discrimination in Employment Act, a different statute. Instead, an age discrimination plaintiff is simply required to prove that his or her age was a “but-for” cause of the challenged employment action.
Evidently the majority of the current court never cared much for the Price Waterhouse analysis, and specifically stated that it might not have adopted this analysis if the question were being considered for the first time today. (slip opin. at p. 10) Does this mean that the whole reason we now have to apply a different analysis in age discrimination cases as opposed to other discrimination cases is that Justice O’Connor has been replaced by Justice Alito? I think it does. If so, maybe we could call the appointment of Justice Alito a “but-for” cause of this latest decision.
In any case, the various burden-shifting tests developed by the Supreme Court in discrimination cases have always proved somewhat incompatible with the way cases are actually presented and understood by the trier of fact. Therefore it is probably too early to tell whether this latest explanation of the way the way burdens of persuasion are supposed to be allocated will make a large difference in practice. Further, judging from what I read in the Los Angeles Times this morning about this case, it appears likely that Congress will take action to reverse this latest Supreme Court ruling, similarly to what they did with the Lilly Ledbetter case, and clarify that age discrimination cases should be handled in a similar manner to other types of discrimination cases.