Published on: May 28, 2019
Authors: D. Mark Wilson
Topics: Employment Law, Inclusion and Diversity
Certain members of Senate (Democrat and Republican) and several “progressive” interest groups reached out to a few associations representing employers’ interests, including HR Policy Association, to see if an agreement could be reached to reject the decision in Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009) by amending and/or restoring the causation standards as applied to certain federal anti-discrimination and anti-retaliation laws. In Gross, the Supreme Court dealt with the burden of causation and methods of proof under the Age Discrimination in Employment Act (ADEA). Given the intricate and complex nature of the issues at play and also due to the fact that these issues rarely come up (and only in actual litigation), we decided a short primer would be helpful. The following memo is to provide some context and background on the issues under discussion.
Burden of Causation in Disparate Treatment Discrimination Cases.
As you know, in order to establish a discrimination claim under federal anti-discrimination or anti-retaliation laws, a plaintiff must show that he or she had been subjected to an adverse employment action “because of” a protected characteristic/activity. Before the decision in Gross, a plaintiff could generally satisfy the “because of” standard of causation in one of two ways.
“But For” Standard. The first way to satisfy this standard required a plaintiff to establish that “but for” the protected characteristic/activity, he or she would not have suffered an adverse employment action. The “but for” standard has been interpreted by the courts to mean that the protected characteristic/activity had a role in the employer’s decision-making process “and had a determining influence on the outcome.” A “determinative factor” is one without which the adverse employment action would not have been taken but it need not be the “sole cause”. Almost all plaintiffs in employment discrimination cases try to use the “but for” standard of causation (for reasons discussed below).
“Mixed-Motives” Standard. The second way a plaintiff could satisfy the “because of” standard was to show that “mixed motives” (some of which were based on his or her protected characteristic/activity and some of which were based on legitimate reasons), led to an adverse employment action. The mixed-motives standard has been interpreted to require a plaintiff to show that the protected characteristic/activity was a “motivating factor” in the employer’s decision-making process even though other legitimate factors may have also resulted in the employer’s action. The Supreme Court’s decision in Gross brought into question the viability of the mixed-motives standard with respect to many federal anti-discrimination and anti-retaliation provisions with the exception Title VII’s anti-discrimination provision and other such statutes that expressly recognize the availability of mixed-motives claims.
Example of Mixed-Motives. A good example of a mixed-motives fact pattern comes from Price Waterhouse v. Hopkins, the seminal case on mixed-motives under Title VII. In that case, Ann Hopkins who was by all accounts very accomplished and competent was up for a partnership promotion. However, she did not receive the promotion and the firm cited her lack of interpersonal skills and abrasiveness as the reasons for its decision not to promote her. She did apparently have difficulty with some of her co-workers and her judgment was questioned because of some of her behavior. These are legitimate business concerns and would justify the decision not to promote. However, she was also told by one of the partners in the decision-making process that many of her professional problems could be solved is she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The fact-finder (the district court in this case) concluded that gender stereotypes had been a factor in Hopkins denial of promotion.
Same Action Defense & Direct Evidence in Mixed-Motive Cases. Because the mixed-motives standard requires what some have considered a “lesser” showing of discriminatory intent, the Court in Price Waterhouse v. Hopkins (and later Congress in 1991 with respect to Title VII discrimination claims) imposed some additional hurdles which a plaintiff must clear before winning a mixed-motives case. First, the Court required that the plaintiff must show through direct evidence rather than circumstantial evidence that his or her protected characteristic/activity was a motivating factor in the employer’s decision. Second, the Court found that if the plaintiff can show mixed-motive then the employer has the opportunity to assert an affirmative defense and would not be liable “if it can prove that, even if it had not taken [protected characteristic/activity] into account, it would have come to the same decision” or taken the same action. This same action defense is a complete defense to liability. In other words, the employer wins if it can establish the same action defense but if not, then the plaintiff wins.
It is important to remember that the same action defense only becomes relevant if the plaintiff first proves that a protected characteristic/activity was a motivating factor in the employer’s decision-making regarding an adverse employment action.
Subsequent Changes Impacting Mixed-Motives Analysis
Civil Rights Act of 1991. Shortly after the Price Waterhouse decision, Congress passed the Civil Rights Act of 1991 (CRA 1991). Among other things, the CRA 1991 amended the discrimination provision of Title VII to explicitly adopt the mixed-motives standard. Thus, in order to establish that an unlawful employment practice had occurred under Title VII a plaintiff need only demonstrate that a discriminatory motive “was a motivating factor for any employment practice, even though other factors also motivated the practice.”
Limited Instead of Complete Defense Adopted by Congress for Title VII. Congress, however, modified the Price Waterhouse same action defense with respect to the discrimination provision of Title VII. Congress rejected the complete defense because it did not believe an employer should be completely absolved of liability if protected characteristics/activities factored into an employer’s decision-making even if the employer could demonstrate that it would have taken the same employment action in the absence of the impermissible motivating factor. To account for this, Congress limited the remedies available to a mixed-motive Title VII discrimination plaintiff if the employer could establish the same action defense. Thus, in a mixed-motives case an employer has a limited defense that restricts the remedies available to a prevailing plaintiff’s declaratory relief to attorney’s fees and costs, and certain types of injunctive relief[MW1] excluding reinstatement, promotion, or hiring. In other words, if the employer in a mixed-motives Title VII discrimination case can establish the same action defense, the court may issue a judgment in favor of the plaintiff, enjoin the employer from discriminating, and award attorney’s fees to the plaintiff’s attorney but it may not award back pay, front pay, compensatory or punitive damages or order reinstatement, hiring, or promotion.
Complete Defense Remains Viable for Non-Title VII Claims. As noted above, the changes made to the Price Waterhouse complete defense by the CRA 1991 only applied to the discrimination provision of Title VII. Consequently, courts considering mixed-motives claims under other federal anti-discrimination and anti-retaliation laws such as the ADA, ADEA, Section 1981, OSHA, False Claims Act, ERISA, etc. have generally applied Price Waterhouse’s mixed-motives analysis including the complete defense and not the limited remedies defense adopted by the CRA 1991. In fact, the courts found that the CRA 1991 only amended Title VII’s discrimination provision and not the retaliation provision so the same action complete defense has been available with respect to Title VII mixed-motive retaliation cases.
The basic rationale is that the Price Waterhouse mixed-motives standard, including the complete defense, is a creation of the Supreme Court and a federal common law standard. Thus, if there is not a statue expressly on point (such as Title VII discrimination, USERRA, SOX), courts have generally applied the complete Price Waterhouse approach.
The Desert Palace Decision.
For years after Price Waterhouse and the CRA 1991, most courts required that a plaintiff establish mixed motive discrimination through direct evidence. The Ninth Circuit Court of Appeals, however, determined that a plaintiff does not need direct evidence to prove mixed motive discrimination under Title VII, but instead, can establish it through either circumstantial or direct evidence.
In 2003, the Supreme Court agreed with the Ninth Circuit. In Desert Palace v. Costa, the Court determined that the Civil Rights Act of 1991 “codified a new evidentiary rule for mixed motive cases arising under Title VII.” The unanimous Court found that CRA 1991 unambiguously stated that a claimant need only “demonstrate” that an employer had a discriminatory motive in taking an adverse employment action and that the Act does not mention or require a claimant “to make a heightened showing through direct evidence.”
After the Desert Palace decision, some federal appellate courts begin applying the rule to other federal anti-discrimination or anti-retaliation provisions.[MW2]
The discussion above, is the background necessary for a discussion of the Gross decision and consideration of the issues.
The Gross Decision Rejects Mixed-Motives In ADEA Cases.
Jack Gross sued his employer after a corporate restructuring resulted in an alleged demotion. In 2003, Gross (age 54) was the claims administration director and he was reassigned Mr. Gross to the position of claims project coordinator. Many of his previous job responsibilities were given to a newly created position – claims administration manager, which was given to a former subordinate of Gross. The former subordinate was younger than Gross, and Gross considered the reassignment a demotion because his employer reallocated his former job responsibilities to his former subordinate. The jury was instructed that it must return a verdict for Gross if age was a motivating factor in his demotion (i.e., mixed-motives standard). The court also instructed the jury that the verdict must be for the employer if it proved that it would have demoted Gross regardless of his age (i.e., complete defense). The jury found in favor of Gross and awarded $46,945 in back pay.
The Eighth Circuit reversed and remanded the case to the district court because the jury had not been instructed that Gross had to establish his mixed-motives claim through direct evidence. The Supreme Court took the case to determine whether direct evidence was necessary to establish a mixed-motives case under the ADEA (i.e., whether the Desert Palace rule applied to the ADEA).
The Supreme Court, however, determined it did not need to decide that issue because the mixed-motives standard of causation adopted by Price Waterhouse and the CRA 1991 for Title VII discrimination did not apply to the ADEA. Instead, the Supreme Court ruled the words “because of” in the ADEA required a plaintiff to show that age was the “but for” cause of the challenged adverse employment action. Likewise, the Court decided that the burden of persuasion never shifts to the employer to show it would have taken the same action regardless of age. The Court also indicated that if mixed-motives was available under the ADEA the Desert Palace rule may not apply.
The results of the Gross decision include the following:
- Mixed-motives standard of causation doesn’t apply in the context of the ADEA.
- Because mixed-motives claims are unavailable under the ADEA, the same action employer defense doesn’t apply.
- Because mixed-motives claims are unavailable under the ADEA, Desert Palace issues are irrelevant.
Aftermath of Gross. Since the Gross decision, the courts have been grappling with the meaning of the words “because of” under federal anti-discrimination and anti-retaliation laws. For example, the Seventh Circuit ruled that interpretation of the causation standard in Gross controlled under the ADA as well as the ADEA and that mixed-motives claims are no longer available under the disability act.
General Principles of the Protecting Older Workers Against Discrimination Act.
The POWADA as introduced would do the following:
- Reject the Gross decision and clarify that the mixed-motives standard in CRA 1991 is available under all federal anti-discrimination and anti-retaliation provisions unless the specific statute directs otherwise.
- Expand the CRA 1991 same action limited remedies defense approach to mixed-motives claims under all federal anti-discrimination and anti-retaliation provisions unless the specific statute directs otherwise (i.e., eliminate the Price Waterhouse same action complete defense).
- Codify the Desert Palace rule that mixed-motives claims may be established either through direct or circumstantial evidence and expand this rule to mixed-motives cases under all federal anti-discrimination and anti-retaliation provisions unless the specific statute directs otherwise.
 The ADA Amendments Act amended the words “because of” to “on the basis of”. However, the phrases have been interpreted to have the same basic meaning.
 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
 Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).
 Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989).
 Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989).
 Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005); Watson v. Southeastern Pennsylvania Transportation Authority, 207 F.3d 207 (3d 2000). Several circuits have gone the other way.
 Baqir v. Prinicipi, 434 F.3d 733, 745 (4th Cir. 2006); DeMarco v. Holy Cross High School, 4 F.3d 166, 172 (2d Cir. 1993).
 Aquino v. Honda of North America., Inc., 2005 U.S. App. LEXIS 24981 **22-24 (6th Cir. 2005); Mabra v. United Food & Commercial Workers, 176 F.3d 1357, 1357-58 (11th Cir. 1999); Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 146 n.16 (2d Cir. 1999); Hardy v. Town of Greenwich, 629 F. Supp.2d 192, 198-200 (D. Conn. 2009).
 Martin v. Anslinger, Inc., 794 F. Supp. 640 (S.D. Tex. 1992).
 Norbeck v. Basin Elect. Power Coop., 215 F.3d 848,851-52 (8th Cir. 2000).
 Lightfoot v. Union Carbide, 110 F.3d 898, 901 (2d Cir. 1997); Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1222 (11th Cir. 1993).
 Pennington v. City of Huntsville, 261 F.3d 1262 (11th Cir. 2001); Matima v. Celli, 228 F.3d 68 (2d. 2000); Shea v. Tosco Corp., 2000 U.S. App. LEXIS 18610 ** 6-10 (9th Cir. 2000); Kubicko v. Ogden Logistics, 181 F.3d 544, 552 n.7 (4th Cir. 1999).
 Federal common law “refers to any rule of federal law created by a court when the substance of that rule is not clearly suggested by federal enactments—constitutional or congressional.” Erwin Chemerinsky, Federal Jurisdiction, (5ed.) 363.
 539 U.S. 90 (2003).
 Rachid v. Jack In The Box, 376 F.3d 305 (5th Cir. 2004) (applying Desert Palace to the ADEA).
 Serwatka v. Rockwell Automation, Inc., 2010 U.S. App. LEXIS 948 (7th Cir. 2010).
[MW1]What types of injunctive relief are allowed? Add footnote.
[MW2]ADD OTHER CASES TO FOOTNOTE
D. Mark Wilson
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