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Argument Preview: Gross v. FBL Financial Services

On Tuesday morning, the Court will hear argument in Gross v. FBL Financial Services, Inc., No. 08-441, a case regarding the burden of proof in “mixed motive” cases under the Age Discrimination in Employment Act (ADEA).  The Court granted certiorari on the question “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” One of the most significant issues to have arisen during the briefing in this case – and sure to be a subject of significance at oral argument – is whether the Court should limit itself to that question or decide, instead, a much broader question of much greater significance – namely, whether to overrule its decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and hold instead that the plaintiff must always bear the burden of proof in mixed motive cases. The employee-petitioner will be represented by Eric Schnapper of the School of Law at the University of Washington.  The employer-respondent will be represented by Carter Phillips of Sidley Austin, LLP. [Disclosure: I consulted with petitioners in this case.]


1.  Petitioner Jack Gross sued his employer alleging intentional age discrimination in violation of the ADEA, asserting that he was demoted because of his age.  As in many intentional discrimination cases, the employer both denied that it took age into consideration at all and argued that even if it did, it also had legitimate reasons for changing Gross’s position.  The question then arises – if the employer would have taken the same action anyway, regardless of its discriminatory motive, should it be held liable for intentional discrimination because it also had an illegal motive?  And if not, who should bear the burden of proving what the employer would have done absent the discriminatory motive?

The Supreme Court set the rules for such “mixed motive” cases under Title VII in Price Waterhouse.  It held that the answer to the first question is “No” – the employer is not liable if it would have taken the same action anyway, despite the discriminatory motive.  A majority of the Justices further agreed (albeit in fractured opinions) that upon an appropriate showing by the plaintiff, the burden should shift to the defendant to prove that it would have taken the same action anyway.

Congress subsequently overruled Price Waterhouse to the extent that it held that an employer who makes the required showing is not liable at all for the discrimination.  Instead, the 1991 Civil Rights Act Amendments provide that the employer is liable, but is not subject to lesser remedies.  Congress did not, however, apply this new provision to the ADEA.

2.  In this case, the district court instructed the jury that if the plaintiff proved by a preponderance of the evidence – direct or otherwise – that age was a motivating factor in the decision to demote him, then the burden of persuasion shifted to the defendant to prove it would have taken the same action absent the prohibited consideration of age.

On appeal, the Eighth Circuit reversed, holding that the burden of persuasion should shift to the defendant only if the plaintiff proved that age was a motivating factor by presenting direct evidence of age bias.  When the plaintiff relies on circumstantial evidence, the court held, the burden of proof remains on the plaintiff, who must demonstrate that the employer would not have demoted him but for his age.

3.  Gross petitioned for certiorari, asking the Court to decide whether the burden of proof in mixed motive cases shifts to the employer only when direct evidence of bias is presented, or whether it shifts in all cases, regardless of the type of evidence.

Respondents’ brief in opposition focused on disputing that there was a circuit split on the question, or whether this case was an appropriate vehicle to resolve the asserted split.  The Court eventually granted certiorari.


1. Petitioner argues that nothing in the Court’s decision in Price Waterhouse turned on whether the plaintiff presents direct or indirect evidence.  Moreover, he points to the Court’s recent decision Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003), as establishing a general rule that unless Congress clearly states otherwise, nothing in the law turns on whether evidence is direct or circumstantial.  And nothing in the language of the ADEA satisfies that standard.  In addition, attempting to define what, exactly, constitutes “direct” evidence would be difficult, he claims.

Petitioner also disputes the court of appeals’ reliance on Justice O’Connor’s concurring opinion in Price Waterhouse, which the court of appeals read to require direct evidence before shifting the burden of persuasion to the employer.  Her vote, petitioner argues, was not necessary to the disposition of the case because Justice White provided the fifth vote and did not endorse any such requirement.

2.  The Solicitor General filed an amicus brief in support of petitioner.

3.  After certiorari was granted, respondents hired new Supreme Court counsel, who filed a brief taking an even more aggressive position than had the court of appeals.  In particular, respondent’s principle argument is that the Court should overrule Price Waterhouse in its entirety and hold that the plaintiff bears the burden of disproving the employer’s assertion that it would have taken the same action anyway, in all cases (direct or circumstantial).  Causation is an element of the plaintiff’s case-in-chief, respondent argues, and the plaintiff ordinarily bears the burden of persuasion with respect to all the elements of his claim.  Causation should not be different.  And to prove causation, the plaintiff must show that the unlawful motive was the but-for cause of his injury, which means that he must prove that the employer would not have taken the challenged action but-for its discriminatory motive.

Respondent acknowledges that this view requires overruling Price Waterhouse, but the decision was badly fractured to begin with, and has proven unworkable in practice, it argues.

In any event, even if Price Waterhouse is not overruled, respondent argues, both Justice O’Connor and Justice White (one of whom provided the fifth vote) required an employee to make some sort of heightened showing before the burden should shift to the defendant – Justice O’Connor required “direct” evidence and Justice White required “substantial” evidence.   However, respondent does not argue that “direct” evidence means “not circumstantial.”  Instead, it argues that “direct evidence” means evidence that is “related directly to the challenged decision” beyond the indirect showing required to establish a prima facie case.   And because the evidence in this case was neither “substantial” nor “direct,” respondent argues, the decision below should be affirmed.

4.  In his reply brief, petitioner argues that the continuing validity of Price Waterhouse is not properly before the Court.  The question is not within the Question Presented and the issue was not raised by the respondent in its Brief in Opposition.  Among other things, petitioner argues, by seeking to introduce the issue for the first time in its brief on the merits, respondent deprived the Solicitor General of an opportunity to address the issue.

In any case, petitioner asserts, Price Waterhouse should not be overruled because it has provided a stable background rule against which courts have operated for many years and against which Congress has acted in enacting subsequent legislation, assuming Price Waterhouse would provide the governing standard.

Petitioner acknowledges that Congress did not mention the ADEA when it overruled Price Waterhouse in part in the 1991 Civil Rights Amendment (which applied only to Title VII).  But that simply means, he says, that Congress intended Price Waterhouse to apply without modification to statutes like the ADEA, which is what the lower courts have unanimously assumed.

Petitioner further repeats its denial that Justice O’Connor’s opinion in Pricewater House is controlling, and argues that Justice White did not understand “substantial factor” to be any different than the “motivating factor” referred to by the plurality.


Respondent’s frontal attack on Price Waterhouse is an interesting strategic decision.  On the one hand, it may reflect respondent’s awareness (particularly with the assistance of new and very experienced Supreme Court counsel) that the Court is unlikely to be attracted to a legal rule that turns on whether the plaintiff adduces “direct” or “non-direct” evidence, particularly in light of Desert Palace.  Thus, while stare decisis always makes it difficult to argue against the grain of a prior Supreme Court decision, it may be that respondent’s most likely path to victory is over the carcass of that prior decision.

In addition, the fact that Price Waterhouse did not produce a majority decision, and has never been applied by the Supreme Court to the ADEA, makes the argument from stare decisis somewhat weaker. The decision to attack Price Waterhouse may also reflect respondent’s view that a majority of the current Court would decide the case differently, if confronted by the question for the first time today.  Indeed, respondent’s arguments in favor of requiring but-for causation, and requiring the plaintiff to prove it, seem at least to me significantly stronger than its argument in favor of adopting Justice O’Connor’s apparent position in Price Waterhouse.

On the other hand, the Supreme Court has long applied essentially the same rule in constitutional cases, see Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), making it somewhat harder to believe that the Court would either make a distinction between statutory and constitutional cases, or overrule Mt. Healthy as well, given how much water is under the bridge on that case.  Moreover, Mt. Healthy was not a fractured decision – quite to the contrary, then-Chief Justice Rehnquist wrote the decision for a unanimous Court.

In addition, the fact that respondents did not raise this argument in their Brief in Opposition stands as a significant impediment to the Court even considering the question.  A respondent is entitled to defend the judgment below on any ground apparent in the record.  But the Court generally expects that if a respondent is going to raise an argument that would preclude it from reaching the question presented by the petition, it should say so openly and early, so the Court can decide whether it wants to address that antecedent question (and if not, possibly deny certiorari) and to allow full briefing on the question by the other party and amici (especially the United States).  In this case, it seems unlikely that anything nefarious was afoot – in all likelihood, the idea emerged when new counsel took a hard look at the case after cert. was granted.  But that does little to mitigate the problems that occur when a new significant argument is raised for the first time in the middle of the merits stage.